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IP Cases & Commentary – Details

6 June 2012

'Tomato Case' - New Referral to Enlarged Board of Appeal: G 2/12

Bénédicte Moulin

EP1211926, sometimes referred to as the 'tomato case', has now been the subject of a second referral (G 2/12) to the Enlarged Board of Appeal. In the decision for the first referral, G 1/08, the Enlarged Board of Appeal had addressed three questions with respect to the application of Art 53(b) EPC for non-microbiological processes.

The Board of Appeal has now referred to the Enlarged Board of Appeal the following questions:

  1. Can the exclusion of essentially biological processes for the production of plants in Article 53(b) EPC have a negative effect on the allowability of a product claim directed to plants or plant material such as a fruit?
  2. In particular, is a claim directed to plants or plant material other than a plant variety allowable even if 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?
  3. Is it of relevance in the context of questions 1 and 2 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?

Useful links

Decision G 1/08.
EP1211926 on the European Patent Register.

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