BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Referrals by boards of appeal
In case T 1054/96 issued during oral proceedings on 13 October 1997, Technical Board of Appeal 3.3.4 referred the following point of law to the Enlarged Board of Appeal under Article 112(1)(a) EPC:
(Language of the proceedings)
1. To what extent should the instances of the EPO examine an application in respect of whether the claims are allowable in view of the provision of Article 53(b) EPC that patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants, which provision does not apply to microbiological processes or the products thereof, and how should a claim be interpreted for this purpose?
2. Does a claim which relates to plants but wherein specific plant varieties are not individually claimed ipso facto avoid the prohibition on patenting in Article 53(b) EPC even though it embraces plant varieties?
3. Should the provisions of Article 64(2) EPC be taken into account when considering what claims are allowable?
4. Does a plant variety, in which each individual plant of that variety contains at least one specific gene introduced into an ancestral plant by recombinant gene technology, fall outside the provision of Article 53(b) EPC that patents shall not be granted in respect of plant varieties or essentially biological processes for the production of plants, which provision does not apply to microbiological processes or the products thereof?