The South African Patents Act Section 25(4)(b) states that:
"A patent shall not be granted for any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a microbiological process or the products of such a process."
The wording of Section 25(4)(b) is substantially similar to the wording of Article 53(b) of the European Patent Convention (EPC). The EPC Rule 26(5) defines an essentially biological process as a process which consists entirely of natural phenomenon such as crossing and selection.
Here we analyse two cases in which the grant of patents was opposed on the basis that the granted patents included claims directed to an “essentially biological process for a production of plants, such processes not being microbiological processes”. The analysis is aimed at providing an interpretation of Section 25(4)(b) based on the decision in relation to a similar provision in the EPC.

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Contact:
William Modisakeng, PhD, Candidate Attorney and Biotechnology Specialist

Verified by Dario Tanziani, Chairman and Partner, Adams & Adams