13 December 2010

EPO Enlarged Board of Appeal Issues Decision in G2/07 - the So-Called "Broccoli" Case

EPO Enlarged Board of Appeal Issues Decision in G2/07 - the So-Called "Broccoli" Case

The long awaited decision of the Enlarged Board of Appeal G2/07 (otherwise known as the “Broccoli” case – see our previous newsletter article with regard to this case) has finally been issued.

G2/07 was consolidated with G1/08.

In brief summary: if a biological process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies the trait in the genome of the plant produced, then the process is not excluded from patentability.

The Enlarged Board of Appeal answered the questions put to it as follows:

1. A non-microbiological process for the production of plants which contains or consists of the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is in principle excluded from patentability as being "essentially biological" within the meaning of Article 53(b) EPC.
2. Such a process does not escape the exclusion of A53(b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selection, as step of a technical nature which serves to enable or assist the performance of the steps of sexually crossing the whole genomes of plants or of subsequently selecting plants.
3. If, however, such a process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies the trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then process is not excluded from patentability under Article 53(b) EPC.
4. In the context of examining whether such a process is excluded from patentability as being "essentially biological" within the meaning of Article 53(b) EPC, it is not relevant whether a step of a technical nature is a new or known measure, whether it is trivial or a fundamental alteration of a known process, whether it does nor could occur in nature or whether the essence of the invention lies in it.

A more detailed analysis of the decision and its ramifications will follow in due course.