The dust has been settling across Europe in the 18 months following the resolution of the much publicised and lengthy “Broccoli/Tomato” patent wars.  The final position of the EPO’s Enlarged Board of Appeal (EBA) was that, in accordance with the Biotech Directive (Directive 98/44/EC on the legal protection of biotechnological inventions), methods of producing plants and animals which were essentially biological could not be patented under the European Patent Convention (EPC), but that the products of such methods could be.  The decisions were clear, legal certainty prevailed, industry was happy it knew where it stood.  Things were peaceful.

Until this month, when the European Commission (EC) pulled the pin on the little legal grenade that is its Notice on certain articles of Directive 98/44/EC.  This Notice clearly states that, in the view of the EC, the correct interpretation of the Biotech Directive is that plants and animals obtained by means of essentially biological processes are also excluded from patentability.

The EPO is not an EU institution and, as such, even though the Biotech Directive is written into the EPC, the views of the EC and the decisions of the Court of Justice of the European Union (CJEU) on the interpretation of such provisions are not binding. On the other hand, the national patent courts of the EU tasked with hearing cases based on EPO granted patents are bound by CJEU decisions and so should, in principle, take account of the explicit views of the EC.  Of course, the views of the EC are just that, and the Notice itself points out that only the CJEU is competent to interpret EU law.

So where does this leave stakeholders?  Well, very much back in the fog of legal uncertainty the EPO worked so hard to dissipate, at least for the foreseeable future. 

It remains to be seen whether national courts will follow the EC’s stance without question, thereby essentially ignoring a landmark EBA decision on matters of subject matter patentability under the EPC, which is almost unheard of these days.  Given the non-binding nature of the Notice, it seems more likely that the first national court seized with a case in point will refer the matter to the CJEU immediately and the views of the EC will be tested.  A decision from the CJEU will then likely take several years to issue, although at that time the national courts of the EU states will be constitutionally obliged to follow whatever lead the CJEU takes and the EPO probably will fall into line too to ensure harmony within the European patent system (as they did in the context of the patentability of human embryonic stem cells). 

Nevertheless, what will be fascinating will be how the EPO handles the situation in the meantime – will it stick to its guns and continue to grant patents to subject matter that might well be deemed unpatentable by the CJEU in the coming years.  Indeed, will the EC seek to revise the Directive rather than settle for the uncertainty of two conflicting interpretations existing side by side potentially for many years?  Of course, opening discussions with a view to a revision of the still controversial Biotech Directive amounts to a gigantic can of diplomatic worms.

What is clear is that the idyll of legal certainty which settled into being following Broccoli/Tomato Wars I and II has been shattered by the EC’s little legal grenade and stakeholders have been thrown back into the chaos of yet another legal war, this time between the opposing views of the two highest bodies of patent law interpretation in Europe.