5.4.1 Plant varieties 

The term "plant variety" is defined in Rule 26(4). A patent is not to be granted if the claimed subject-matter is directed to a specific plant variety or specific plant varieties. The method for the plant's production, be it by recombinant gene technology or by a classical plant breeding process, is irrelevant for considering this issue (see T 1854/07). Therefore, plant varieties containing genes introduced into an ancestral plant by recombinant gene technology are excluded from patentability (G 1/98). However, if the invention concerns plants or animals, which are not exclusively obtained by means of an essentially biological process (see G‑II, 5.4, above and G 3/19), and if the technical feasibility of the invention is not confined to a particular plant or animal variety, the invention is patentable (see G‑II, 5.2).

A claimed plant grouping is not excluded from patentability under Art. 53(b) if it does not meet the definition of a plant variety set out in Rule 26(4).

When a claim to a process for the production of a plant variety is examined, Art. 64(2) is not to be taken into consideration (see G 1/98). Hence, a process claim for the production of a plant variety (or plant varieties), which is not exclusively essentially biological, is not a priori excluded from patentability merely because the resulting product constitutes or may constitute a plant variety.

Controlled hybrids with inbred parents are excluded from patentability under Art. 53(b), as they define either a seed or a plant which necessarily belongs to a particular plant grouping within the meaning of plant variety pursuant to Rule 26(4).

A claim cannot escape the exclusion of plant varieties under Art. 53(b) by consisting of a large number of varieties, not even if there are hundreds of them. Only if the subject-matter of the claim comprises at least one embodiment which does not constitute a variety is the claim allowable under Art. 53(b) (see T 1208/12). For instance, a claim directed to a hybrid of a specific deposited Brassica variety with any high-yielding Brassica variety results in a Brassica hybrid variety, which is not patentable.