Broccoli & Tomatoes, part deux: more from the Enlarged Board

The Enlarged Board has been busy indeed. Not content with clarifying the law on clarity (see here), it has also now emerged from the garden clutching two prize specimens: G 2/12 (Tomatoes II) and G 2/13 (Broccoli II).

Broccoli & Tomatoes - Jacob Levine

Both cases (they were dealt with in a consolidated hearing) relate to the exclusion from patentability under Article 53(b) EPC for plant or animal varieties or essentially biological processes for the production of plants or animals (with the caveat that the exclusion does not apply to microbiological processes or the products thereof).The decisions are  (pdf download links).

This Kat, who prefers a nice piece of fish to either broccoli or tomatoes, will leave it to a colleague with greener fingers paws to explain the decisions in the coming days. In the meantime, the headnotes are posted below, these being identical other than the addition of a point dealing with process features of a product-by-process claim in Broccoli II (Headnote 2(a)).

Tomatoes II:

1. 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.

2. In particular, the fact that 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 does not render a claim directed to plants or plant material other than a plant variety unallowable.

3. In the circumstances, 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 excluded as such under Article 53(b) EPC.

Broccoli II:

1. 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 plant parts.

2. (a) The fact that the process features of a product-by-process claim directed to plants or plant material other than a plant variety define an essentially biological process for the production of plants does not render the claim unallowable.

2. (b) The fact that 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 does not render a claim directed to plants or plant material other than a plant variety unallowable.

3. In the circumstances, 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 excluded as such under Article 53(b) EPC.

Thanks to our commenters Anonymous and P de Lange for pointing us to the existence of these decisions.