91997E3103

WRITTEN QUESTION E-3103/97 by Hiltrud Breyer (V) to the Commission (13 October 1997)

Subject: Conflict between EPO case law and draft patent directive

Recital 17b (new) of the Rothley report (which the Commission intends to accept), on the proposal for a European Parliament and Council Directive on the legal protection of biotechnological inventions

(A4-0222/97), stipulates that a plant totality which is characterized by a particular gene is not excluded from patentability even if it comprises plant varieties. This is in flagrant breach of the case law of the European Patent Organization, such as decision T 356/93 (EPO Official Journal for 1995, p. 545).

How is this conflict, and the associated legal uncertainty, to be resolved?

Answer given by Mr Monti on behalf of the Commission (6 January 1998)

In reply to the question put by the Honourable Member, the Commission would point out that it is aware of the fact that the wording of recital 17b (new), which takes over Amendment No 20 adopted by Parliament, is at variance with Decision T 356/93 of 21 February 1995 of the Technical Board of Appeal of the European Patent Office (EPO). The same is true of Article 4(2) of the amended proposal, which takes over Parliament's Amendment No 47. Parliament took the view that the interpretation of the exclusion from patentability of plant varieties given by the Technical Board of Appeal was not to be followed as regards application of Member State legislation on invention patents that also provides for exclusion from patentability. The Commission shares this view.