Who owns the pepper? – An assessment of the conflicts resulting from the amendment of Rule 28 (2) of the European Patent Convention Implementing Regulations

The present article focuses on the recent decision of the Enlarged Board of Appeal in the Pepper case. It examines the impact of the amendment of Rule 28 (2) of the EPC Implementing Regulations on the scope of the exclusion for essentially biological processes for the production of plants in Art. 53 (b) of the European Patent Convention EPC. It further contains an analysis of the internal hierarchy of the institutions within the European Patent Office and focuses in particular on the question, whether the Rules of the EPC Implementing Regulations take precedence over the decisions of the Enlarged Board of Appeal. Furthermore, an assessment of the provisions of the European Patent Convention and the general principles of law should shed light on the question, whether the Administrative Council was empowered to amend Rule 28 (2) of the EPC Implementing Regulations.