Plants or Plant Material are Neither Process nor Plant Variety

The Enlarged Board of Appeal has written a new chapter in the Tomato- Broccoli Saga and confirmed the narrow interpretation of Art. 53(b) EPC.

The following is a quote from the EPO-website:

In the referral cases G 2/12 and G 2/13, which were considered in consolidated proceedings, the Enlarged Board of Appeal has decided that the exclusion of essentially biological processes for the production of plants in Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material such as a fruit or plant parts. This applies even if the only method available at the filing date for generating the claimed plants or plant material is an essentially biological process for the production of plants, and also if the claimed product is defined in terms of such a process (product-by-process claim). In this context it is of no relevance that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants. Product claims or product-by-process claims directed to plants or plant material other than a plant variety thus are not excluded from patentability under Article 53(b) EPC and are allowable if they fulfil the formal and substantive requirements of the EPC (emphasis added).

The term 'plant variety' is defined in R. 26(4) EPC in the same way as in Directive 98/44/EC on the legal protection of biotechnological inventions, namely as "any plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for the grant of a plant variety are fully met, can be:

• (a) defined by the expression of the characteristics that results from a given genotype or combination of genotypes,
• (b) distinguished from any other plant grouping by the expression of at least one of the said characteristics, and
• (c) considered as a unit with regard to its suitability for being propagated unchanged.

Importantly, this definition excludes hybrid seed or plants lacking stability in some trait or generation as well as plant cells which can be nowadays cultured like bacteria and yeasts.

The full text of the decisions can be found here and here.