The Commission takes the view that the EU legislator's intention when adopting Directive 98/44/EC was to exclude from patentability products (plants/animals and plant/animal parts) that are obtained by means of essentially biological processes.
Kinkeldey speculated that the interpretative note may be the Commission’s attempt to silence the increasingly vocal plant breeders that consider patents to be encroaching on turf they believe their own without having to amend the Biotech Directive. During the discussion, it was pointed out that since the recent publication of the interpretative note, already a number of proposals to amend the Biotech Directive have been made and the Pandora’s box that is an amendment of the Biotech Directive may be about to be opened.
In the meanwhile, the national courts tasked with the enforcement of European patents are in the unenviable position that they have to decide whether to follow the Enlarged Board of Appeal or the Commission’s interpretative note. Patent proprietors best start biting their nails.