G 0001/98 (Transgenic plant/NOVARTIS II) of 20.12.1999

European Case Law Identifier

ECLI:EP:BA:1999:G000198.19991220

Date of decision

20 December 1999

Case number

G 0001/98

Petition for review of

T 1054/96 1997-10-13

Application number

91810144.5

IPC class

A01N 63/00

Language of proceedings

English

Distribution

Published in the EPO's Official Journal (A)

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Decision in English

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Abstracts for this decision

Application title

Anti-pathogenically effective compositions comprising lytic peptides and hydrolytic enzymes

Applicant name

Novartis AG

Opponent name

Board

Headnote

I. A claim wherein specific plant varieties are not individually claimed is not excluded from patentability under Article 53(b), EPC even though it may embrace plant varieties.

II. When a claim to a process for the production of a plant variety is examined, Article 64(2) EPC is not to be taken into consideration.

III. The exception to patentability in Article 53(b), 1st half-sentence, EPC applies to plant varieties irrespective of the way in which they were produced. Therefore, plant varieties containing genes introduced into an ancestral plant by recombinant gene technology are excluded from patentability.

Relevant legal provisions

European Patent Convention Art 52 1973 European Patent Convention Art 53(b) 1973 European Patent Convention Art 54 1973 European Patent Convention Art 64(2) 1973 European Patent Convention R 23b 1973Strasbourg_Patent_Convention_Art_002(b)UPOV_Convention_1961_Art_002UPOV_Convention_1991_Art_001(vi)

Keywords

Claims comprising but not identifying plant varieties
Plant varieties as products of recombinant gene technology
Article 64(2) EPC not relevant for examination of product claims

Catchword

Cited cases

G 0005/83 T 0049/83 T 0292/85 T 0320/87 T 0361/87 T 0019/90 T 0356/93

Citing cases

G 0001/07 G 0002/07 G 0001/08 G 0002/12 G 0002/13 G 0003/19 J 0002/01 T 0380/94 T 1054/96 T 0903/97 T 0149/98 T 0098/00 T 0103/00 T 0274/00 T 0025/01 T 0179/01 T 0475/01 T 0866/01 T 0315/03 T 0992/03 T 1020/03 T 0154/04 T 0200/04 T 1262/04 T 1374/04 T 0083/05 T 1213/05 T 1242/06 T 1729/06 T 1854/07 T 2006/07 T 2239/08 T 0569/10 T 0915/10 T 2461/10 T 1208/12 T 2420/13 T 0056/21 T 2049/23

ORDER

For these reasons it is decided that:

The questions of law referred to the Enlarged Board of Appeal are answered as follows:

1. See answers to questions 2 to 4.

2. A claim wherein specific plant varieties are not individually claimed is not excluded from patentability under Article 53(b) EPC, even though it may embrace plant varieties.

3. When a claim to a process for the production of a plant variety is examined, Article 64(2) EPC is not to be taken into consideration.

4. The exception to patentability in Article 53(b), 1st half-sentence, EPC applies to plant varieties irrespective of the way in which they were produced. Therefore, plant varieties containing genes introduced into an ancestral plant by recombinant gene technology are excluded from patentability.