EPO - News from the Enlarged Board of Appeal of the EPO

EPO - News from the Enlarged Board of Appeal of the EPO (Oral proceedings in cases G 2/07 and G 1/08 and two new referrals to the EBA) reported by Rudolf Teschemacher, Bardehle & Pagenberg

EPO, Enlarged Board of Appeal
Oral proceedings in cases G 2/07/BROCCOLI and G 1/08/TOMATOES

The oral proceedings were accompanied by protests outside the EPO-building of groups opposed to patents in the field of plants. The public interest in the cases is also illustrated by some 130 amicus curiae briefs filed in consolidated proceedings G 2/07 and G 1/08.

The points of law referred to the Enlarged Board of Appeal in decisions T 83/05 (OJ EPO 2007, 644) and T 1242/06 (OJ EPO 2008, 523) concern the scope of the exclusion from patentability for essentially biological processes for the production of plants in Art 53 b) EPC. Previous case law held that the question whether or not a process is to be considered “essentially biological” within the meaning of this provision has to be assessed on the basis of the invention as a whole taking into account the totality of human intervention and its impact on the result achieved. In 1999, a provision implementing Art. 2 (2) of the EU Biotechnology Directive was introduced into the Implementing Regulations to the EPC. Rule 26 (5) EPC stipulates that a process for the production of plants is essentially biological if it consists entirely of natural phenomena such as crossing or selection.