NON PATENTABLE INVENTIONS

Sec 3(j)

SEC 3(j)

Plants & animals in whole or any part thereof other than micro- organisms, but including seeds, varieties an d species and essentially biological process for production or propagation of plants & animals

Section 3(j) exclusions

Plants & animals in whole Parts of plants & animals Seeds Varieties & species Essentially biological processes for

propagation or production of the animals & plants

CONTD…

Examples Clones and new varieties of plants

A process for production of plants or animals if it consists entirely of natural phenomena such as crossing or selection

Essentially biological Process

Plant Varieties

It was excluded in light of the International Convention for the Protection of New Varieties of Plants (UPOV) 1961.

Article 53(b) of European Patent Convention.

PGS/Glutamine Synthetic Inhibitors, T356/93(1993) 24 618, (1995) EPOR 357.

A dispute related to plants, plant cells and seeds that possessed a foreign gene which made them resistant to a type of herbicide.

Green peace objected to the application arguing, inter alia, that the material claimed was a plant variety and thus excluded by Article 53(b) of EPC.

BIOLOGICAL PROCESSPlant Bioscience/Broccoli

(T83/05), (2007) OJ EPO 644.

The central claim of the application in question was for a method for the production of broccoli (Brassica), this consisted of a number of steps traditionally used in breeding.

Rejected the claim for that it is an essential biological process and as such it should be excluded from patent.

ANIMAL VARIETIESHarvard/Onco-mouse

(2003) OJ EPO 473, 499.

In discussing the rationale for the animal variety exclusion, The Opposition Division at the EPO said that “ the most obvious reason for this must have been the intention or at least the keeping open of the possibility to create such a law for the protection of animal varieties later on.”