Pepper plants lead to hot decisions – and to patentable subject matter!

By Stijn van Dongen and Bart Swinkels

On 5 December 2018 the Boards of Appeal decided that Rule 28(2) EPC is in conflict with Article 53(b) EPC and that the article prevails over the Rule under Article 164(2) EPC. As a result, Rule 28(2) EPC is to be considered void and to be ignored. This means that plants (or animals) obtained via essentially biological processes are not excluded from patentability – despite Rule 28(2) explicitly saying so.