BOARDS OF APPEAL
Decisions of the Enlarged Board of Appeal
Communication from the Enlarged Board of Appeal concerning case G 1/08
In accordance with Article 112(1)(a) EPC, the Technical Board of Appeal 3.3.04 has referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 4 April 2008 in case T 1242/06:
1. Does a non-microbiological process for the production of plants consisting of steps of crossing and selecting plants fall under the exclusion of Article 53(b) EPC only if these steps reflect and correspond to phenomena which could occur in nature without human intervention?
2. If question 1 is answered in the negative, does a non-microbiological process for the production of plants consisting of steps of crossing and selecting plants escape the exclusion of Article 53(b) EPC merely because it contains, as part of any of the steps of crossing and selection, an additional feature of a technical nature?
3. If question 2 is answered in the negative, what are the relevant criteria for distinguishing non-microbiological plant production processes excluded from patent protection under Article 53(b) EPC from non-excluded ones? In particular, is it relevant where the essence of the claimed invention lies and/or whether the additional feature of a technical nature contributes something to the claimed invention beyond a trivial level?
The text of the referral in the English language is available on the website of the European Patent Office under www.epo.org/patents/appeals/pending.html.
Cases G 2/07 and G 1/08 will be considered in consolidated proceedings.
The Enlarged Board of Appeal considering the referral will be composed as follows:
P. Messerli (Chairman), B. Günzel, R. Freimuth, L. Galligani, K. Klett, A. Linder, S. Perryman.
It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff.). To ensure that any such statements can be given due consideration without holding up the proceedings more than necessary, they should be filed together with any new cited documents by the end of October 2008 at the Registry of the Enlarged Board of Appeal, quoting case number G 1/08.