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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.