Quis custodet custodes? Referral G‐3/19 before the EPO Enlarged Board of Appeal and the imperative of challenging the board's interpretation of Art. 53(b) EPC

Abstract

AbstractThe European Patent Office Enlarged Board of Appeal was asked in April 2019 to answer two questions regarding the exclusions from patentability under Art. 53 European Patent Convention (EPC), the dominant patent law in Europe. The first related to the manner in which EPC Articles should be interpreted, and the second to whether Art. 53 EPC excluded plants and animals that are the products of the excluded “essentially biological processes.” Since product claims are infringed by all processes for making the product, the second question was important—if the products are patentable, the exclusion of the processes is rendered meaningless, something which cannot have been the intention of the legislators drafting the EPC. The questions are in case G‐3/19 Peppers and the Enlarged Board of Appeal handed down its opinion on May 14, 2020. In this paper we examine the background to this case, the strength of the arguments presented, and the Enlarged Board's decision which we find to dangerously undermine the Article of the EPC, Art. 164 EPC, which requires changes to the principles of what can be patentable to be democratically agreed by the parliaments of the EPC member states rather than by an administrative body of government‐appointees.