Questions in the "Tomato" patent case submitted to the Enlarged Board of Appeal

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4 June 2012

The Technical Board of Appeal competent in the appeal proceedings related to the so-called "Tomato" patent has decided to refer further questions of law to the Enlarged Board of Appeal of the EPO (EBoA).

The questions concern the issue as to 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, such as a fruit. The intention to refer was already announced by the board in the oral proceedings on 8 November 2011 before it decided to continue the appeal procedure in writing.

The present referral was regarded as necessary in view of the new requests of the patent proprietor which were submitted in response to the outcome of the first referral (decision G 1/08 of the EBoA) and were restricted to product claims for tomato fruits. The decision G 1/08 had clarified the circumstances under which plant breeding methods are excluded from patentability as essentially biological processes for the production of plants. 

Further information

Interlocutory decision of 31 May 2012 for case number T 1242/06

Referrals pending before the Enlarged Board of Appeal

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