National Laws on the Patentability of Plants
(update 25 January 2019)
Summary:
Art 53(b) EPC excludes from patentability plants or animal varieties or essentially biological processes for the production of plants or animals. Some national laws contain a provision excluding from patentability, besides essentially biological processes, the products derived thereof.
Question (Q)
Is there a specific provision in the national law that excludes from patentability the plant products directly obtained by using an essentially biological process?
No: 33
Yes: 5
|
MS |
National Law / EN translation |
Remarks |
Q |
|
AL |
Law No. 9947 of 7 July 2008 Art 6.2 EN Translation Exceptions to patentability Patents shall not be granted in respect of: 2. Plant or animal varieties or essentially biological processes for the production of plants or animals, without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained by means of such a process. |
Art 5.5 (c) Art 5 Patentable Inventions 5. Biotechnological inventions shall also be patentable if they concern: c) a microbiological or other technical process, or a product obtained by means of such a process other than a plant or animal variety.
|
No |
|
AT |
Patentgesetz 1970 BGBl. 1970/259 idF BGBl. I 37/2018 (Patentgesetz) § 2(2) Patentgesetz § 2. (2) Patente werden nicht erteilt für Pflanzensorten oder Tierrassen sowie für im wesentlichen biologische Verfahren zur Züchtung von Pflanzen oder Tieren und die ausschließlich durch solche Verfahren gewonnenen Pflanzen oder Tiere. (…) EN Translation Patents shall not be granted for plant and animal varieties and for essentially biological processes for producing plants and animals and plants or animals that are exclusively obtained by such processes. […] |
§2(2) of the Austrian Patent Law in full reads: “(2) Patente werden nicht erteilt für Pflanzensorten oder Tierrassen sowie für im Wesentlichen biologische Verfahren zur Züchtung von Pflanzen oder Tieren und die ausschließlich durch solche Verfahren gewonnenen Pflanzen oder Tiere. Der Begriff der Pflanzensorte wird durch Artikel 5 der Verordnung (EG) Nr. 2100/94 über den gemeinschaftlichen Sortenschutz, ABl. Nr. L 227 vom 1. September 1994 S. 1, in der Fassung der Verordnung (EG) Nr. 2506/95, ABl. Nr. L 258 vom 28. Oktober 1995 S. 3, definiert. Ein Verfahren zur Züchtung von Pflanzen oder Tieren ist im wesentlichen biologisch, wenn es vollständig auf natürlichen Phänomenen wie Kreuzung oder Selektion beruht. Erfindungen, deren Gegenstand Pflanzen oder Tiere sind, können patentiert werden, wenn die Ausführung der Erfindung technisch nicht auf eine bestimmte Pflanzensorte oder Tierrasse beschränkt ist. Satz 1 Teil 2, wonach Patente nicht für im wesentlichen biologische Verfahren zur Züchtung von Pflanzen oder Tieren erteilt werden, berührt nicht die Patentierbarkeit von Erfindungen, die ein mikrobiologisches oder sonstiges technisches Verfahren oder ein durch diese Verfahren gewonnenes Erzeugnis zum Gegenstand haben, wobei ein mikrobiologisches Verfahren jedes Verfahren ist, bei dem mikrobiologisches Material verwendet, ein Eingriff in mikrobiologisches Material durchgeführt oder mikrobiologisches Material hervorgebracht wird.” |
Yes |
|
BE |
The Belgian Code of Economic law provides: Art. XI.5. § 1 Ne sont pas brevetables : 1° les variétés végétales et les races animales ; 2° les procédés essentiellement biologiques pour l'obtention de végétaux ou d'animaux. § 2. Les inventions portant sur des végétaux ou des animaux sont brevetables si la faisabilité technique de l'invention n'est pas limitée à une variété végétale ou à une race animale déterminée. § 3. Le paragraphe 1er, 2°, n'affecte pas la brevetabilité d'inventions ayant pour objet un procédé microbiologique, ou d'autres procédés techniques, ou un produit obtenu par ces procédés.
EN Translation Art. XI.5. § 1. Shall be excluded from patentability: (1) plant and animal varieties; (2) essentially biological processes for the production of plants or animals. § 2.The inventions relating to plants and animals are patentable if the technical feasibility is not limited to a particular plant or animal variety. § 3. The paragraph 1, (2)shall not apply to microbiological processes or to the products obtained by such processes. |
The patentability of plants is discussed in Art. XI.5. of the new Belgian Code of Economic law of which book XI entered into force on 1 January 2015. |
No |
|
BG |
Bulgarian Patent Law Art 7 (1) EN Translation Exceptions to Patentability (1) Patents shall not be granted for: (...) 3. plant varieties or animal varieties; 4. essentially biological processes for obtaining plants and animals. |
Patentability of biotechnological inventions is set in Art 7a (3): Inventions relating to plants or animals shall be considered patentable, if the technical realisation of the invention is not reduced to a certain plant or animal variety. |
No |
|
CH |
Bundesgesetz über die Erfindungspatente (Patentgesetz, PatG) vom 25. Juni 1954 Art 2(2)b Art 2(2)b PatG Von der Patentierung sind ferner ausgeschlossen: […] b. Pflanzensorten und Tierrassen und im Wesentlichen biologische Verfahren zur Züchtung von Pflanzen und Tieren; unter Vorbehalt von Absatz 1 patentierbar sind jedoch mikrobiologische oder sonstige technische Verfahren und die damit gewonnenen Erzeugnisse sowie Erfindungen, deren Gegenstand Pflanzen oder Tiere sind und deren Ausführung technisch nicht auf eine bestimmte Pflanzensorte oder Tierrasse beschränkt ist.
EN Translation [Excluded from patentability are:] b. Plant varieties and animal varieties or essentially biological processes for the production of plants and animals; however, subject to the reservation of paragraph 1, microbiological or other technical processes and the products obtained thereby as well as inventions that concern plants or animals are patentable provided that their application is not technically confined to a single plant or animal variety. |
An essentially biological process that comprises at least one non-biological, technical step that is required for arriving at the desired solution (e.g. irradiation, temperature shock), will be patentable and so will be the products obtained by that process.
Swiss patent law is clear as to the non-patentability of essentially biological processes but is somewhat silent as to the patentability of products obtained by essentially biological processes. From the wording of Art.2 (2)b PatG, last half-sentence (emphasized in bold letters), it may be inferred, however, that it was not the legislator's intention to exclude novel and inventive products from protection solely because they have been obtained by essentially biological processes. This view seems to be confirmed by the federal court decision BGE 121 III 125 (1995), Asta Medica vs Lendi, which also emphasizes patentability of plant product inventions as long as they are not confined to specific plant varieties. This understanding is also mirrored by the examination guidelines wherein patentability of products obtained by essentially biological processes is not excluded although not explicitly stated either.
In essence, the goal of the Swiss legislator is to avoid double protection of plant inventions by both the plant varieties protection act and the patent law.
|
No |
|
CY |
Patent Act of 1998 (Law 16(I)/98, as amended by Laws 21(I)/99, 153(I)/2000, 163(I)/2002 and 163(I)/2002). Article 5a EN Translation Essentially biological processes for the production of plants or animals are not patentable. (…) It is understood that the foregoing restriction shall not affect the patentability of patents having as an object a microbiological method or other technical methods or a product that is a result of such methods. |
The Biotech Directive (98/44) has been implemented in Cyprus law, as an amendment to the Patent Act of 1998. |
No |
|
CZ |
Law No. 527/1990 Coll. on Inventions and Rationalisation Proposals (Patent Law) Section 4.b EN Translation Exclusions from patentability Patents shall not be granted in respect of: (…) b) plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes and the products thereof. |
In two relevant Czech Laws (Nos. 527/1990 and 206/2000), there is no provision that explicitly excludes patentability of plants (or animals) obtained by essentially biological process. Consequently, the patentability of plant, wherein the plant is produced by essentially biological processes, would be an issue of official/judicial interpretation of the existing legal provisions. Unfortunately, up to now there is no relevant case law in the Czech Republic. Plant or animal varieties or essentially biological processes for the production of plants or animals are excluded from patentability by the Patent Law (Law No. 527/1990), nevertheless, the Law No. 206/2000, on the Protection of Biotechnological Inventions (which is an implementation of Biotech Directive 98/44/EC) in Section 2.b classifies plants and animals among the patentable inventions, “if the technical feasibility of the invention is not confined to a particular plant or animal variety”.
|
No |
|
DE |
Patentgesetz in der Fassung der Bekanntmachung vom 16. Dezember 1980 (BGBl. 1981 I S. 1), das zuletzt durch Artikel 1 des Gesetzes vom 19. Oktober 2013 (BGBl. I S. 3830) geändert worden ist § 2a (1)1 Patentgesetz Patente werden nicht erteilt für 1. Pflanzensorten und Tierrassen sowie im Wesentlichen biologische Verfahren zur Züchtung von Pflanzen und Tieren und die ausschließlich durch solche Verfahren gewonnenen Pflanzen und Tiere;
EN Translation Patents shall not be granted for 1. plant or animal varieties or for essentially biological processes for the production of plants or animals and plants and animals exclusively obtained by such processes; (The underlined part has recently been added to the German provision. The amendment entered into force on 25 October 2013) |
Bundestagsdrucksache 17/14222 regarding No. 1 (Amendment of Section 2a of the Patent Act – PatG):
With this supplementation to Section 2a Subsection 1 Number 1 PatG, it will be clarified that, with regard to essentially biological processes for the production of plants and animals, not only the processes but also plants and animals produced by such processes are not patentable, even if they are no plant or animal varieties which are anyhow excluded from patentability under Section 2a Subsection 1 Number 1 PatG. The current version of this stipulation literally adopted Article 4 of the Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions ([…] – Biopatent Directive). In this respect, the Enlarged Board of Appeal of the European Patent Office determined in its decision concerning patent cases “broccoli” and “tomato” (G2/07 and G1/08) of December 9, 2010 that the mere use of technical process steps for performing or supporting essentially biological processes do not render the processes patentable. However, in its decision, the Enlarged Board of Appeal does not deal with the question of the patentability of products in the form of animal and plants produced by such animal- or plant related processes. The Federal Government is of the opinion that, according to the object and purpose of Article 4 of the Biopatent Directive, the patentability exclusion should mandatorily also apply to such animals and plants. The non-patentability of conventional breeding processes could otherwise be easily circumvented. In the interest of breeders and farmers, it shall therefore be clarified that plants and animals which immediately arise from their conventional breeding should not be covered by patents of third parties having generic product claims. The potential to obtain patent protection by the German industry – especially the chemical and pharmaceutical industry – should, however, not come restricted by anything going beyond the intention of this clarification. Products derived from biologically bred animals or plants, such as plant oils, should remain patentable provided they comply with the other patentability requirements. Only with a formulation which clearly relates the patentability exclusion of processes and products to the same matter, i.e. “plants and animals”, it will be possible to comply with the available scope for national regulations defined by the EU-Biopatent Directive which is particularly restricted to clarifications. In this context, the terms “plants and animals” do not only cover the produced animals and plants, but also material, such as seed, or in connection with animals, sperm, ovules and embryos, which is obtained by conventional biological processes and is useful for the production of plants and animals. The use of the term “exclusively” shall safeguard that undisputable patentable, especially genetically modified plants and animals will not be covered by the patentability prohibition because of the fact that they additionally underwent an essentially biological crossing and selection process. |
Yes |
|
DK |
Patents Act, cf. Consolidate Act No. 91 of 28 January 2009 LBK nr 91 af 28/01/2009 Gældende (Patentloven) Section 1(4)-1(6)
EN Translation (4) Patents shall not be granted in respect of plant or animal varieties. Patents may, however, be granted for inventions, the subject-matter of which is plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety. In this Act a “plant variety” means a plant variety as defined in Article 5 of Council Regulation (EC) No. 2100/94 on Community plant variety rights. (5) Patents shall not be granted in respect of essentially biological processes for the production of plants or animals. In this Act an “essentially biological process” means a process consisting entirely of natural phenomena such as crossing or selection. Patents may, however, be granted for microbiological processes or other technical processes or products obtained by such processes. In this Act a “microbiological process” means any process involving microbiological material, performed on microbiological material or resulting in microbiological material. (6) Inventions may be patentable even if they relate to a product consisting of or containing biological material or to a process by means of which biological material is produced, processed or used. Biological material which is isolated from its natural environment or produced by means of a technical process may be the subject-matter of an invention even if it previously occurred in nature. In this Act “biological material” means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system. |
The Danish patent law seems to be more “liberal” than the German law, and also slightly more than the Dutch law. This section was amended in the implementation of the Biotech Directive. |
No |
|
EE |
Estonian Patent Act of March 16, 1994 Art 7
EN Translation Non patentable inventions (…) (2) The following biotechnological inventions shall not be protected by a patent: (…) 5) essentially biological processes for the derivation of biological materials, plants or animals, except microbiological processes for the derivation of micro-organisms; 6) inventions the application of which is confined to a single plant or animal variety. (3) For the purposes of this Act, “essentially biological process for the derivation of a biological material, plant or animal” means a process which consists entirely of natural phenomena such as crossing and selection. |
|
No |
|
ES |
Law No. 24/2015 of 24 July on Patents Art 5.3 EN Translation Non-patentable subject matter are: 2. Plant and animal varieties. However, inventions having as an object plants or animals are patentable if the technical feasibility of the invention is not limited to a particular plant or animal variety. 3. Essentially biological processes for the production of plants or animals. For these purposes essentially biological processes means processes which consist entirely of natural phenomena such as crossing and selection. The previous paragraph will not affect the patentability of inventions related to a microbiological method, or to any other technical method, or to a product obtained by such methods. |
Art 5.3 of the Spanish Patent Law excludes essentially biological processes but not the products. The Guidelines for examination (July 2016) mention the exclusion of the essentially biological processes but are silent about the products (plant and animals) obtained by an essentially biological process.
|
No |
|
FI |
Finnish Patents Act, No. 550 of December 15, 1967 Chapter 1, Section 1 as amended 30.6.2000/650 and 18.11.2005/896 EN Translation Anyone who has, in any field of technology, made an invention which is susceptible of industrial application, or his or her successor in title, is entitled, on application, to a patent and thereby to the exclusive right to exploit the invention commercially, in accordance with this Act (18.11.2005/896). (…) Patents shall not be granted for plant or animal varieties. Inventions which concern plants or animals shall nevertheless be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. The concept of plant variety within the meaning of this Act is defined by Article 5 of Council Regulation (EC) No 2100/94 on Community plant variety rights. Patents shall not be granted for essentially biological processes for the production of plants or animals. For the purposes of this Act a process for the production of plants or animals shall be considered essentially biological if it consists entirely of natural phenomena such as crossing or selection. What is said above shall be without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained by means of such a process. For the purposes of this Act 'microbiological process' means any process involving or performed upon or resulting in microbiological material. Inventions shall be patentable even if they concern a product consisting of or containing biological material or a process by means of which biological material is produced, processed or used. Biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature. For the purposes of this Act 'biological material' means any material containing genetic information and capable of reproducing itself or being reproduced in a biological system. |
Finnish Patents Act excludes from patentability plant or animal varieties and essentially biological processes for the production of plants or animals. There is no legal provision excluding the products derived from essentially biological processes from patentability. The Biotech Directive was implemented to Finnish Patents Act by amendment which entered into force on 30th June 2000. The implementation was done in cooperation with other Nordic countries. Therefore the legislation regulating the patenting of biotechnological inventions is very similar in different Nordic countries.
|
No |
|
FR |
French Intellectual Property Code (CPI) Art L611-19 EN Translation The following shall not be patentable: 1º animal varieties; 2º plant varieties as defined in Article 5 of Regulation (EC) No. 873/2004 introducing new rules governing intellectual property ownership of Community plant variety rights; 3º essentially biological processes for the production of plants and animals. A process that consists entirely of natural phenomena such as crossing or selection shall be regarded as biological process. 3° bis Products exclusively obtained by the essentially biological processes defined in 3°, including the elements constituting these products and the genetic information they contain; 4° Processes for modifying the genetic identity of animals which are likely to cause them suffering without substantial medical benefit to man or animal, as well as animals resulting from such processes. II – Notwithstanding the provisions of I (3°), inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. III – The provisions of I (3°) shall be without prejudice to the patentability of inventions which concern a technical process, in particular a microbiological one, or a product obtained by means of such a process; any process involving or resulting in or performed upon a microbiological material shall be regarded as a microbiological process.
|
Following the EU Directive N°98/44 of July 6, 1998 on biotech inventions, the French Parliament enacted a law on bioethics on August 6, 2004 (J.O n° 182 of August 7, 2004, which deals with the human body (Article L.611-18 of the French Intellectual Property Code)) and another law on the protection of biotechnological inventions on December 8, 2004 (J.O n° 286 of December 9, 2004, which deals with plants and animals (Article L.611-19 of the French Intellectual Property Code)). The new provisions recognize that biological material (i.e., any material containing genetic information and capable of reproducing itself or being reproduced in a biological system) may be involved in a patentable invention, provided that it can be isolated from its natural environment or produced by means of a technical process and that it complies with the traditional patentability requirements (the invention must be new, involve an inventive step, and be susceptible of industrial applications). The Biodiversity Law of August 2016 (Law for the recovery of biodiversity, nature and landscape dated August 8, 2016, which entered into force on August 9, 2016) has introduced two amendments into the Code de la propriété intellectuelle (CPI) by excluding from patentability products exclusively obtained by essentially biological processes (Article L611-19 3°bis). According to parliamentary discussions during the lawmaking process, this amendment was essentially triggered by decisions G 2/12 (Tomatoes II) and G 2/13 (Broccoli II) of the Enlarged board of appeal of the EPO. |
YES |
|
GB |
UK Patents Act 1977 Section 76A and Schedule A2 76A Biotechnological inventions (1) Any provision of, or made under, this Act is to have effect in relation to a patent or an application for a patent which concerns a biotechnological invention, subject to the provisions of Schedule A2. (2) Nothing in this section or Schedule A2 is to be read as affecting the application of any provision in relation to any other kind of patent or application for a patent. SCHEDULE A2 BIOTECHNOLOGICAL INVENTIONS (…) 3 The following are not patentable inventions— (…) (f) any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological or other technical process or the product of such a process. 4 Inventions which concern plants or animals may be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. 11 In this Schedule: “essentially biological process” means a process for the production of animals and plants which consists entirely of natural phenomena such as crossing and selection; (…) |
Section 76A and Schedule A2 of the UK Patent Act excludes from patentability any essential biological process for the production of animals or plants. The UK has no legal provision excluding the products derived from essentially biological processes from patentability.
|
No |
|
GR |
Law No. 1733/87 (FEK 171 A’ of 22.09.1987) "Technology transfer, inventions, and technological innovation" as amended by Art 18, of Law No. 1739/1987 (FEK 201, A’ of 20.11.1987) Article 5.8.b
EN Translation Patents shall not be granted in the following cases: b. plant or animal varieties or biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof. |
The Greek national law “Technology transfer, inventions, technological innovation and establishment of the Commission of Atomic Energy” (number 1733/1987 as in force) contains a provision excluding the varieties of plants and animals from patentability, besides essentially biological and microbiological processes and the products derived therefrom. The products derived from essentially biological processes for the production of plants or animals are not excluded from patentability. A process for the production of plants or animals is essentially biological if it consists entirely of natural phenomena such as crossing or selection. Inventions relating to plant (or animal) varieties have patentability, only if the technical feasibility of the invention is not confined to a particular plant (or animal) variety. See presidential Decree 321/2001, the implementation of the EU Directive 98/44 on the legal protection of biotechnological inventions (relevant Art 2 -3). |
No |
|
HR |
Croatian Patent Act Art 6.1 EN Translation Excluded from patent protection shall be: 1. inventions which concern animal breeds, plant varieties and essentially biological processes for the production of plants or animals, with the exception of inventions which concern non-biological and microbiological processes and products resulting from such processes, as provided for in Article 5, paragraph (4) of this Act; a microbiological process shall imply, under this Act, any process involving or performed upon or resulting in microbiological material. |
Art 5.4) (…) An invention which concerns plants or animals shall be considered patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety and if the process for carrying out the invention is not essentially biological.
|
No |
|
HU |
Hungarian Patent Act (Act XXXIII of 1995 on the protection of inventions by patents) Art 6.4.b EN Translation 4. The following shall not be patentable: (a) plant varieties [Article 105(a)] and animal breeds; (b) essentially biological processes for the production of plants or animals. 5. Inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant variety or animal breed. (…) |
Art 6 of the Hungarian Patent Act excludes from patentability only essentially biological processes for the production of plants and animals. Hungary has no legal provision excluding the products derived from essentially biological processes from patentability.
|
No |
|
IE |
Irish Patents Act 1992 Section 10b A patent shall not be granted in respect of (…) b) a plant or animal variety or an essentially biological process for the production of plants or animals other than a micro-biological process or the products thereof. |
The Irish Patents Act 1992 at present does not contain provisions which exclude plants and animals exclusively obtained by such processes. |
No |
|
IS |
Icelandic Patents Act No 17/1991 Art 1 EN Translation (…) A patent shall not be granted for plant or animal varieties. It is however possible to grant patents for inventions pertaining to plants and animals if the implementation of the patent is not confined for technical reasons to a particular plant or animal variety. In this Act, plant variety refers to a plant variety as it is defined in the Act on Plant Variety Rights, No. 58/2000. A patent shall not be granted on an essentially biological process for producing plants or animals. By an essentially biological process, this Act refers to a method that on the whole is based on natural phenomena such as crossing and selection […]” |
The relevant provisions are almost identical to the Danish Patent Act. |
No |
|
IT |
Italian Industrial Property Code (IIPC) Decreto Legislativo 10 febbraio 2005, n. 30 Codice della proprieta' industriale, a norma dell'articolo 15 della legge 12 dicembre 2002, n. 273 and further amendments Art 45.4.b EN Translation Patentable subject matter (…) 4. It cannot be a patentable subject-matter (…) b) plant varieties and animal breeds and essentially biological processes for production of animals or plants, including new plant varieties with respect to which the invention consists only of the genetic modification of another plant variety, even if such modification results from a process of genetic engineering. 5. The provision of paragraph 4 shall not apply to microbiological processes and products obtained by these processes. As to plants or group of plants, Art 81 IIPC recites: Art 81-quater Patentability 1. It can be patentable, subject to fulfilment of novelty, inventive step and industrial applicability requirements: (…) e) an invention relating to plants or animals or a plant grouping characterized by the expression of a specific gene and not by its whole genome, provided that their application is not limited, from a technical standpoint, to the obtainment of a particular plant variety or animal species and that they are not obtained by means of essentially biological processes only, (…)
|
Plant varieties are clearly excluded from patent protection.
Then exclusion of patentability of plants is limited to plants univocally used for the production of plant varieties and obtained solely through essentially biologically processes. |
No |
|
LI |
See under “CH” |
|
No |
|
LT |
Lithuanian Patent Law (Law on Patents of 18 January 1994, No. I-372 as changed on: 08 November 1994; 09 and 23 December 1997; 15 June 2000; 21 December 2000; 30 October 2001; 30 June 2005; 08 June 2006; 10 May 2007; 23 December 2010) Art 5.1 paragraph 2)
EN Translation Patents should not be granted for (…) 2)
plant or animal varieties or essentially biological methods for
obtaining thereof. |
What is emphasized in bold appeared as from 30/06/2005. |
No |
|
LU |
Loi du 20 juillet 1992 portant modification du régime de brevets d'invention telle que modifiée par la loi du 24 mai 1998 et par la loi du 11 août 2001 et par la loi du 7 avril 2006 et la loi du 25 avril 2008 Art 5bis EN Translation 1. Not patentable are: a) Plant and animal varieties b) Essentially biological methods for obtaining plants or animals. 2. Inventions concerning plants or animals are patentable if the technical implementation of the invention is not limited to a particular plant or animal variety. 3. Paragraph 1, item b), does not affect the patentability of inventions related to a microbiological method, or to other technical methods, or to a product obtained by such methods. |
|
No |
|
LV |
Patent Law of the Republic of Latvia (in force since 01.03.2007) Art. 10 (Biotechnological Inventions) EN Translation 1. A patent shall be granted to biotechnological inventions: 1.1. containing biological material isolated from its natural environment or acquired with the help of a technical method, even if it has been previously met in nature; 1.2.. pertaining to plants or animals if the technical nature of the invention does not confine itself to some specific plant or animal variety; and 1.3. pertaining to microbiological or other technical method or a product acquired with such a method if it is not a plant or animal variety. 2. A patent shall not be granted to plant or animal varieties or to the basically biological methods for the acquisition of plant or animal varieties. |
|
No |
|
MC |
Patent law in Monaco N°606 of June 20, 1955 |
There is no specific provision in the national law that excludes from patentability the plant products directly obtained by using an essentially biological process.
|
No |
|
MK |
Macedonian Law on Industrial Property Art 26.1 EN Translation A patent may not protect an invention: 1) which relates to new animal and plant varieties and essentially biological processes for the production of animals or plants, with the exception of biotechnological inventions, for which the technical feasibility is not restricted to a certain type, and microbiological processes and products generated from such processes; (…) |
|
No |
|
MT |
Maltese Patents and Designs Act (Cap. 417 Laws of Malta) Art 4.5 A patent shall not be granted in respect of: (…) e) plant and animal varieties: Provided that patents shall not be granted for plant varieties only after a new form of plant variety protection is introduced in such form as may be prescribed: Provided further that a patent may still be granted for a plant variety in respect of which a patent application is still pending on the date that a new form of plant variety protection is prescribed; (f) essentially biological process of the production of plants or animals: Provided that this is without prejudice to the patentability of inventions which concern a microbiological or other technical process or a product obtained by means of such a process; 6. Inventions which concern plants or animals shall be patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. (…) |
|
No |
|
NL |
Dutch Patent Act 2010 (Rijksoctrooiwet 2010) Art 3.1.d EN Translation No patents shall be issued for: (…) (c) plant or animal varieties, (d) essentially biological processes, entirely consisting of natural phenomena such as crossings and selections, for the production of plants or animals as well as the products obtained as a result thereby (…) |
Unlike the EPC and in conflict with the Biotech Directive (98/44 EC), the Dutch Patent Act 2010 excludes from patentability plants or animals produced by essentially biological processes, even if the technical feasibility of the invention is not confined to a particular plant or animal variety |
Yes |
|
NO |
The Norwegian Patents Act, no 9 of December 15, 1967 (last amending Act on July 1, 2013) Section 1 EN Translation Within any technical field, any person who has made an invention which is susceptible of industrial application, or his successor in title, shall, in accordance with this Act, have the right on application to be granted a patent for the invention and thereby obtain the exclusive right to exploit the invention commercially or operationally. Subject matters not regarded as inventions include anything which merely consists of: 1. discoveries, scientific theories and mathematical methods; 2. aesthetic creations; 3. schemes, rules or methods for performing mental acts, playing games or doing business, or programs for computers; 4. presentations of information. Inventions may also constitute patentable inventions when they concern a product consisting of or containing biological material, or a process by means of which biological material is produced, processed or used. Biological material, which is isolated from its natural environment or produced by means of a technical process, may be the subject of an invention even if it already occurs in nature. Biological material means, for the purpose of this legal text, material that contains genetic information, and can reproduce itself or be reproduced in a biological system. A patent cannot be granted in respect of plant or animal varieties. Inventions that concern plants or animals may, however, be patentable if usage of the patent is not technically limited to one particular plant or animal variety. The King may, by regulation, determine what should be considered a plant or an animal variety. A patent cannot be granted for what are essentially biological processes to produce plants or animals. An essentially biological process means, for the purpose of this legal text, a process, which consists entirely of natural phenomena such as crossing or selection. A patent may, on the other hand, be granted for microbiological or other technical processes or for a product produced by such processes. A microbiological process means, for the purpose of this legal text, any process involving, performed upon or resulting in the production of microbiological material. A patent shall not be granted for methods for surgical or therapeutic treatment or diagnostic methods, practiced on humans or animals. This provision shall not prevent the grant of patents for products, including substances and compositions of substances, for use in such methods. |
Products obtained by microbiological or other technical processes are patentable, but the law does not say anything of products obtained by essentially biological processes. Also relevant is the patent regulation’s definition of “plant variety”; Section 88 Definition of plant variety Under
the patent act and regulation a plant variety is understood to be
a stock of plant within a single botanical taxon of the lowest
rank, which 3. can be considered as a unit with regard to the ability to reproduce unchanged. The existence of characteristics as mentioned in first paragraph no. 1, can be invariable or variable between variety constituent parts of the same kind, provided that the variation level is due to the genotype or combination of genotypes. |
No |
|
PL |
Industrial Property Law (IPL), Act of 30 June 2000 (as amended) EN Translation Art. 29
(…) (ii) plant varieties or animal breeds and purely biological processes for the production of plants or animals; this provision does not apply to microbiological production processes or the products obtained by the processes,
|
While essentially (in Polish purely) biological processes for the production of plants varieties or animal breeds are excluded from patentability, there is no explicit exclusion of patentability of products derived from such biological processes. Furtheremore, it is not possible to obtain a patent for a new plant variety or animal breed, irrespective of their production process, i.e. even produced by a microbiological process. According to Article 931 of the IPL “microbiological process” means any process involving or performed upon or resulting in microbiological material.
As plant varieties or animal breeds are excluded from the patent protection, the processes for production of plant varieties or animal breeds do not protect indirectly products obtained directly by the processes according to Art. 64 of the IPL: Article 64 A patent granted for a process of manufacture shall also cover products directly obtained by means of that process. However, in accordance with Art. 932 of the IPL biotechnological inventions directed to plants or animals not restricted to a single plant variety or animal breed are patentable: Art.932. 1 The following, in particular, shall be considered as biotechnological inventions eligible for granting a patent protection: (…) 3) inventions which concern plants or animals, if the technical feasibility of the invention is not confined to a particular plant or animal variety.
However, the law does not exclude a possibility of obtaining a patent for processes for the production of new plant varieties or animal breeds (not purely biological), despite the fact that they lead to production of new varieties or breeds. |
No |
|
PT |
[Until 30.06.2019] Portuguese Industrial Property Code (IPC) - (approved by Decree-Law 36/2003 of 5 March and amended by Decree-Law 318/2007 of 26 September, Decree-Law 360/2007 of 2 November, Decree-Law 143/2008 of 25 July and Law 16/2008 of 1 April) Art 53.3.b EN Translation Art 53. Limitations regarding patents 3. The following shall also not be the subject matter of a patent: (…) b) Plant or animal varieties, as well as essentially biological processes for the production of plants or animals; (…) Art 54 Special cases of patentability 1.The following shall be patentable: (…) d) An invention concerning plants or animals, if its technical feasibility is not confined to a particular plant or animal variety; e) A biological material isolated from its natural environment or produced by means of a technical process, even if it previously occurred in nature; f) An invention concerning a microbiological process or other technical processes, or products obtained by means of such processes. 2. An essentially biological process for the production of plants or animals means any process consisting entirely of natural phenomena such as crossing or selection. (…) [From 01.07.2019] Portuguese Industrial Property Code (IPC) - Decree-Law 110/2018 of 10 December 2018) The new Portuguese IP code entering in force on 01.07.2019 will explicitly prohibit the protection for plants or animals exclusively obtained by means of an essentially biological process. Art 52 Limitations regarding patents (…) 3. The following shall also not be the subject matter of a patent: (…) c) Plant and animal varieties and essentially biological processes for obtaining plants or animals, and plants or animals exclusively obtained by such processes. (…) Art 53 Special cases of patentability 1.The following shall be patentable: (…) (…) d) Without prejudice to paragraph b) of paragraph 3 of the preceding article, an invention having as its object vegetable or animal, if its technical feasibility is not confined to a particular plant or animal variety; e) A biological material isolated from its natural environment or produced by means of a technical process, even if it previously occurred in nature; f) An invention having as its object a microbiological process or other technical processes, or products obtained by such processes. 2. It is understood by essentially biological process of obtaining plants or animals, any process which consists entirely of natural phenomena, such as crossing or selection.
|
(*)The wording excluding plants and animals exclusively obtained by such processes is present in the new PT law that will entry in force on 01.07.2019. The “Guide to Procedures concerning Technological Rights”, published by INPI-PT, has not yet been updated to reflect this change in law. |
Yes* |
|
RO |
Romanian Patent Law 64/1991 Art 9.b EN Translation Patents shall not be granted under this Law in respect of: (…) b) plant varieties and animal breeds, as well as the essentially biological processes for the production of plants or animals. This provision shall not apply to microbiological processes or products obtained thereby; (…) |
Art 7.b-c Art 7 - A patent shall be granted for any invention having as a subject-matter a product or a process, in all technological fields, provided that it is new, involves an inventive step and is susceptible of industrial application. Inventions in the field of biotechnology shall be patentable if they relate to: (...) b) plants or animals, if the technical feasibility of the invention is not limited to a particular plant variety or animal breed; c) a microbiological process or other technical process or a product, other than a plant variety or animal breed, obtained by means of said process. |
No |
|
RS |
Serbian Patent Law (Issued in “Official Gazette of the Republic of Serbia“, no. 99/11, dated December 27th 2011); in force since January 4th, 2012 Art 9.3 EN Translation Exceptions to Patentability A patent shall not be granted in respect of: (...) 3. a plant or animal variety or an essentially biological process for the production of a plant or animal, provided that this provision shall not apply to microbiological processes or the products obtained by means of such process. (…) Essentially biological process referred to in item 3) of this Article for the production of plants or animals is a process consisting entirely of natural phenomena such as crossing or selection. |
|
No |
|
SE |
The Patents Act (Swedish Statute Book, SFS, 1967:837, in the version in force from July 1, 2014) Article 1 a EN Translation Patents are not granted in respect of plant varieties or animal breeds. A patent may, however, be granted in respect of an invention that relates to plants or animals if the technical feasibility of the invention is not confined to a particular plant variety or animal breed. The concept of a plant variety is defined in Chapter 1, Article 3, of the Act on the Protection of Plant Varieties Rights (Act 1997:306). Patents shall not be granted in respect of essentially biological processes for the production of plants or animals. (…) A patent may, however, be granted for an invention that concerns a microbiological process or another technical process or a product obtained by means of such a process. (…) An invention may be patentable even if it concerns a product consisting of or containing biological material or a process through which biological material is being produced, processed or used. A biological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurs in nature. (…) (Act 2004:159). |
Under Swedish law, there is no provision excluding products derived from essentially biological processes. |
No |
|
SI |
Intellectual Property Act Art 16 EN Translation Subject-matter of short-term patent protection (1) With the exception of processes, plant varieties and animal breeds, a short-term patent may be granted for inventions which are new, susceptible of industrial application and are the result of a creative effort. |
|
No |
|
SK |
Slovak Act No. 435/2001 Coll. on Patents, Supplementary Protection Certificates and on Amendment of Some Acts as Amended (The Patent Act) Art 6.1 EN Translation Exceptions to patentability 1. Patents shall not be granted to a) plant and animal varieties, b) essentially biological processes for creation plants or animals, (…)
|
Art 3 Definition of terms For purposes of this Act (...) c) essentially biological process for creation plants or animals shall mean a process based exclusively on natural phenomena such as breeding or selection, (...) Article 5 Patentability of inventions 1. Patents shall be granted for inventions from all fields of technology, which are new, involve inventive activity and are industrially applicable. 2. Patents pursuant to paragraph 1 shall be also granted for biotechnological inventions concerning to a product consisting of or containing biological material, or to a process by means of which biological material is produced, processed or utilised, including cases when invention relates to (…) b) a plant or an animal, if a technical feasibility of an invention is not reduced to a particular plant or animal variety (Act No 132/1989 Coll. on Protection of Rights to New Plant and Animal Variety), (...)
|
No |
|
SM |
Industrial Property Consolidation Act of the Republic of San Marino, Law n. 79 of 25 May 2005 Art 2.4 EN Translation (Subject-matter of the patent and exclusions from patentability) 4. The following inventions are not patentable: (…) c) inventions concerning animal varieties or essentially biological processes for the production of animals varieties; this provision shall not apply to microbiological processes and the products thereof; (…) 5. An essentially biological process means a process, which consists entirely of natural phenomena such as crossing or selection.
|
The wording excluding plants and animals exclusively obtained by such processes present in DE and NL law is not present in San Marino Act |
No |
|
TR |
Industrial Property Law 6769 (Enactment Date:22.12.2016; in force since 10.01.2017) Patentable inventions and exceptions to patentability Article 82- (…) (3) Patent shall not be granted for the following inventions: a) Inventions against public order or morality. b) Plant or animal varieties or essentially biological processes for the production of plants or animals, excluding microbiological processes or the products thereof; (…) (5) Microbiological process mentioned in subparagraph (b) of paragraph three means any process involving or performed upon or resulting in microbiological material; essentially biological process means the production of plants or animals consisting entirely of natural phenomena such as crossing or selection. (…)
|
Articles 82(3)(b-d) and (5) of the new IP Code includes non-patentable biotechnological inventions to bring the law in line with the provisions of the EPC. Concerning the plant varieties, previous law was also excluding the patentability of plant varieties therefore nothing has changed in that matter. Currently there is no National Court decision regarding the patentability of plant varieties.
|
No |
