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New referrals relating to the patentability of plants


Annelise Holme

In previous issues we have discussed the influence of G2/07 and G1/08, also known as the ‘broccoli’ and ‘tomato’ cases, on the patentability of plants which have been, or could have been, obtained by methods excluded from patentability.

These cases both related to the production of plants in which a trait was introduced into the plants by crossing and selection steps.

The Enlarged Board of Appeal (EBA) decided that since crossing and selection necessarily involve human intervention, the conclusion to be drawn is that a process for the production of plants which is based on the sexual crossing of whole genomes and on the subsequent selection of plants, in which human intervention, including the provision of a technical means, serves to enable or assist the performance of the process steps, is excluded from patentability as being “essentially biological” within the meaning of Article 53(b) of the European Patent Convention (EPC).

On this basis, if a patent claim is related to a process for obtaining plants based on sexual crossing and selection, these claims are not patentable irrespective of what other steps may be included in the claims.

plant patentability, EPC, broccoli and tomato cases, EBA


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