Article 28

BOARDS OF APPEAL

Decision of the Enlarged Board of Appeal dated 25 March 2015 - G 2/13¹

(Language of the proceedings)

Composition of the board:

Patent proprietor/Appellant:
Plant Bioscience Limited

Opponent/Respondent:
Syngenta Participations AG
Groupe Limagrain Holding

Relevant legal provisions:

EPC Art. 52, 53, 54, 55, 56, 57, 64(2), 69, 100(a), 112(1)(a), 125, 150(2), 164, 177

EPC R. 26, 27(b) and (c), 28(c)

RPEBA Art. 13, 14(2)

Relevant legal provisions (EPC 1973):

EPC Art. 52(4), 53(b)

EPC R. 23b(5), 23c, 23d

Transitional provisions (EPC):

Decision of the Administrative Council of 28 June 2001 on the transitional provisions under Article 7 of the Act revising the EPC, Art. 1(1)

Decision of the Administrative Council of 7 December 2006 amending the Implementing Regulations to the European Patent Convention 2000, Art. 2

Conventions:

Vienna Convention on the Law of Treaties of 23 May 1969, Art. 4, 31(1) and (3), 32

International Convention for the Protection of New Varieties of Plants of 2 December 1961, as revised on 10 November 1972, on 23 October 1978, and on 19 March 1991, UPOV Convention, Art. 2 UPOV Convention 1961, Art. 14(1) and (2) UPOV Convention 1991

Convention on the Unification of Certain Points of Substantive Law on Patents for Invention, Council of Europe, of 27 November 1963, Strasbourg Convention, Art. 2

Law of the European Union:

Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, Biotech Directive, Art. 2, 3, 4, 6(2)

Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights, CPVR Regulation, Art. 5(3), 13(2)

Law of the Contracting States:

Germany: Patentgesetz 1936 (2013), § 2a

France : Loi no 2004-1338 relative à la protection des inventions biotechnologiques, Art. L. 611-19 CPI

The Netherlands: Rijksoctrooiwet 1995 (2014), Art. 3

Austria: Patentgesetz 1970 (2014), § 2(2)

Switzerland: Bundesgesetz über die Erfindungspatente 1954 (2012), § 2(2)

United Kingdom: Patents Act 1977 (2014), Section 76A and Schedule A2

Keyword:

"Admissibility of referrals by the board of appeal" - yes - "Point of law of fundamental importance" - yes - "Effect of Article 53(b) EPC on the allowability of a product claim or a product-by-process claim directed to plants or plant material" - "Essentially biological process for the production of plants" - "Interpretation of exclusion from patentability" - "Rules of interpretation" - "Dynamic interpretation" - no - "Legal erosion of the exception to patentability" - no

Catchwords:

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.