3.4.2 Difference between microbiological and genetic­engineering processes

In G 1/98 (OJ 2000, 111), the Enlarged Board suggested that processes of genetic engineering and microbiological processes are not identical. The term microbiological processes in Art. 53(b) EPC 1973 was used as a synonym of processes using micro­organisms. Micro­organisms are different from the parts of living beings used for the genetic modification of plants. To treat genetically­modified plants as products of microbiological processes within the meaning of Art. 53(b), second part of sentence, EPC 1973, would disregard the purpose of the exclusion of plant varieties in Art. 53(b) EPC 1973, i.e. excluding from patentability subject­matter eligible for protection under the plant breeders' rights system. Therefore, the Enlarged Board took the view that it did not make any difference for the requirements under the UPOV Convention or under the Regulation on Plant Variety Rights, how a variety was obtained. Whether a plant variety was the result of traditional breeding techniques, or whether genetic engineering was used to obtain a distinct plant grouping, did not matter. This meant that the term "plant variety" was appropriate for defining the borderline between patent protection and plant breeders' rights protection irrespective of the origin of the variety.

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