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Case Law of the Boards of Appeal

 
 
c)
Invalid approaches to interpreting the exception 

In interpreting the exception applying to "essentially biological processes for the production of plants", the Enlarged Board rejected a series of possible approaches. It found that the wording of R. 26(5) EPC, which corresponds to that of Art. 2(2) of the Biotech Directive, was of no help in interpreting Art. 53(b) EPC, while approaches analogous to that taken for the purposes of Art. 52(4) EPC 1973 or that applicable to computer-related inventions were similarly unhelpful. Nor would it be right to apply criteria linking the decision on whether a process for the production of plants is essentially biological or technical to what is known or used in the prior art (see, in this respect, T 320/87, OJ 1990, 71).