Following the cases G 2/12 and G2/13 (“Tomatoes II” and “Broccoli II”), patentability of food following biological processes was con/affirmed by the European Commission, although it raises a few eyebrows among producers, who couldn’t find anymore shelter in the exception granted by the EU directive 98/44/EC.
Thereforem the EU Commission stroke back highlihghting how the EU legislators intented indeed to provide exceptions for products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes.
Will htye amend the directive to clear this up? No one knows, but Member States had already took countermeasure. France , through Act n°2016-1087 of August 8, 2016, amended Article L.611-19 of the French Intellectual Property Code to provide that: “not patentable are: … 3°bis -Products exclusively obtained from an essentially biological process defined at 3°, including the elements constituting these products and the genetic information they contain“.