Amicus Curiae Brief on Enlarged Board of Appeal case G 3/19

10 October 2019

The IP Federation has submitted observations at the European Patent Office as amicus curiae in respect of Enlarged Board of Appeal case G 3/19. This is a referral pursuant to Art. 112(1)(b) EPC by the President of the European Patent Office) – “Article 164(2) EPC / Pepper”.

The President of the EPO has referred the following points of law to the Enlarged Board of Appeal:

1. Having regard to Article 164(2) EPC, can the meaning and scope of Article 53 EPC be clarified in the Implementing Regulations to the EPC without this clarification being a priori limited by the interpretation of said Article given in an earlier decision of the Boards of Appeal or the Enlarged Board of Appeal?

2. If the answer to question 1 is yes, is the exclusion from patentability of plants and animals exclusively obtained by means of an essentially biological process pursuant to Rule 28(2) EPC in conformity with Article 53(b) EPC which neither explicitly excludes nor explicitly allows said subject-matter?

In summary, the IP Federation’s submission is that the questions referred by the EPO President are inadmissible. In case the Enlarged Board finds they are admissible, the IP Federation also makes observations relating to the substance of question 1.

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