Notice from the European Patent Office dated 10 September 2013 concerning the staying of proceedings due to referrals G 2/12 and G 2/13

1. Referral G 2/12 ("Tomatoes II") is pending before the Enlarged Board of Appeal. In addition, further questions of law have recently been referred to the Enlarged Board of Appeal with interlocutory decision of 8 July 2013 in case T 83/05. This referral is pending as case G 2/13 ("Broccoli II"). The questions seek, in particular, to clarify whether the exclusion of essentially biological processes for the production of plants may affect the allowability of product claims directed to plants or plant material.

2. The Enlarged Board of Appeal has invited the public to comment on both referrals, with the period for amicus curiae submissions in case G 2/13 ending in November.

3. The President of the European Patent Office has decided that, having regard to the potential impact of the two referrals, all substantive proceedings before the EPO first-instance departments (examining and opposition divisions) where the decision depends entirely on the outcome of the Enlarged Board of Appeal's decision will be stayed ex officio until the Enlarged Board of Appeal issues its decision. Search proceedings will not be affected.

4. This concerns cases in which the subject-matter of the invention is a plant obtained by an essentially biological process for the production of plants within the meaning of G 2/07 and G 1/08 (see Guidelines for Examination G-II, 5.4.2). Patent applications or patents concerning other plant-related inventions will not be affected.

5. If proceedings are stayed, the responsible examining or opposition division will inform the party or parties thereof. At the same time, communications setting time limits for the party/parties to react will be withdrawn by the examining or opposition division, and no further communications to this effect will be despatched. Once the Enlarged Board of Appeal has given its decision, a further communication will be issued concerning the resumption of proceedings.

6. The present notice is immediately applicable but limited to those cases affected by referrals G 2/12 and G 2/13. It supersedes, for these specific referrals, the general practice of the departments of the first instance as laid down in the Guidelines for Examination, Part E-VI, 3, according to which proceedings in case of referrals pending before the Enlarged Board of Appeal are stayed only at the explicit request of a party to the proceedings.


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