Plant Innovations and the EPO
‘Plant or animal varieties or essentially biological processes for the production of plants or animals’ are excluded from patentability in Europe. The Enlarged Board of Appeal (EBOA) decision G1/98 attempted to clarify the distinction between a ‘plant’ and a ‘plant variety’. Plants which are not plant varieties have to date been patentable before the EPO. However, if the claims related to a plant variety per se then these would be considered to fall within the exclusion.
Recent EBOA decisions (G2/07 and G1/08) have concluded that a non-microbiological process for the production of plants which contains the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is in principle excluded from patentability as being ‘essentially biological’.
In order for a process of plant production to be patentable an additional step of a technical nature is necessary, which step ‘by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced’.
Recently, EP1211926, often referred to as the 'tomato case', has been referred again to the EBOA (G2/12). In the decision based on the first referral, the EBOA addressed three questions with respect to the application of Art 53(b) EPC which excludes from patentability plant or animal varieties or essentially biological processes for the production of plants or animals. This provision does not, however, apply to microbiological processes or the products thereof.
The following questions have now been referred to the EBOA:
- Can the exclusion of essentially biological processes for the production of plants in Article 53(b) EPC have a negative effect on the allowability of a product claim directed to plants or plant material such as a fruit?
- In particular, is a claim directed to plants or plant material other than a plant variety allowable even if the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application?
- Is it of relevance in the context of questions 1 and 2 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 excluded as such under Article 53(b) EPC?