In accordance with Article 112(1)(a) EPC, Technical Board of Appeal 3.3.04 has referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 8 July 2013 in case T 83/05:
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 plant parts?
2. In particular:
(a) Is a product-by-process claim directed to plants or plant material other than a plant variety allowable if its process features define an essentially biological process for the production of plants?
(b) 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?
4. If a claim directed to plants or plant material other than a plant variety is considered not allowable because the plant product claim encompasses the generation of the claimed product by means of a process excluded from patentability under Article 53(b) EPC, is it possible to waive the protection for such generation by "disclaiming" the excluded process?
The text of the referral in English is available on the EPO website under http://documents.epo.org/projects/babylon/eponet.nsf/0/2E17DB8244857D0CC1257BA5004DFD8A/$File/ReferralT0083_05-3304.pdf
The Enlarged Board of Appeal considering the referral will be composed as follows: W. van der Eijk (Chairman), B. Günzel, C. Floyd, R. Menapace, U. Oswald, J. Riolo, G. Weiss
Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff) in one of the official languages of the EPO (English, French or German).
To ensure that any such statements can be given due consideration they should be filed by the end of November 2013 with the Registry of the Enlarged Board of Appeal, quoting case number G 2/13.
Each statement should also be accompanied by a list of cited documents and copies on paper or, preferably, CD/DVD of any such documents not previously filed.