3.3.2 Essentially biological processes for the production of plants
In T 1729/06 the invention was in the field of the production of watermelon fruit, in particular of seedless watermelons. The claimed use and methods concerned the pollination of the sterile female flowers of the triploid watermelon plant with pollen of the diploid polliniser plant. They did not concern sexually crossing two whole genomes of plants (implying meiosis and fertilisation) and the subsequent selection of plants. The board was therefore satisfied that the use and methods as subject-matter of the claims were not such methods which the Enlarged Board of Appeal in its decisions G 2/07 (OJ 2012, 130) and G 1/08 (OJ 2012, 206) had considered to fall under the exclusion of "essentially biological processes for the production of plants".
The board noted that, in those decisions, the Enlarged Board had not given a comprehensive and exhaustive definition of the subject-matter to which the process exclusion in Art. 53(b) EPC applies in relation to plant inventions. Therefore, it still needed to be established whether the claimed uses and methods were excluded from patentability by virtue of the process exclusion in Art. 53(b) EPC for other reasons.
The board found that they were not. The legislator drafting Art. 53(b) EPC had not intended to exclude from patentability a whole class of inventions, i.e. horticultural or agricultural (agronomic) processes, under which the claimed use and methods undoubtedly fell. The EPC 1973 legislator (and the EPC 2000 legislator) had only wished to exclude from patentability the – then conventional – processes applied by plant breeders in connection with new plant varieties for which a special property right was available under the UPOV Convention, and processes which were fundamentally of this type.
Thus, rather than being excluded from patentability by virtue of Art. 53(b) EPC, the claimed uses and methods constituted a "technical process" and were therefore patentable pursuant to R. 27(c) EPC.