T 0083/05 (Broccoli/PLANT BIOSCIENCE) of 22.05.2007
- European Case Law Identifier
- ECLI:EP:BA:2007:T008305.20070522
- Date of decision
- 22 May 2007
- Case number
- T 0083/05
- Petition for review of
- -
- Application number
- 99915886.8
- IPC class
- A01H 5/10
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- Other decisions for this case
- T 0083/05 Broccoli II/PLANT BIOSCIENCE 2013-07-08T 0083/05 Broccoli II/PLANT BIOSCIENCE 2013-07-08T 0083/05 Broccoli II/PLANT BIOSCIENCE 2013-07-08T 0083/05 Broccoli II/PLANT BIOSCIENCE 2013-07-08T 0083/05 Broccoli III/PLANT BIOSCIENCE 2015-09-10
- Abstracts for this decision
- -
- Application title
- Method for selective increase of the anticarcinogenic glucosinolates in Brassica species
- Applicant name
- Plant Bioscience Limited
- Opponent name
- Syngenta Participations AG
Groupe Limagrain Holding - Board
- 3.3.04
- Headnote
The following questions are referred to the Enlarged Board of Appeal for decision:
1. Does a non-microbiological process for the production of plants which contains the steps of crossing and selecting plants escape the exclusion of Article 53(b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selection, an additional feature of a technical nature?
2. If question 1 is answered in the negative, what are the relevant criteria for distinguishing non-microbiological plant production processes excluded from patent protection under Article 53(b) EPC from non-excluded ones? In particular, is it relevant where the essence of the claimed invention lies and/or whether the additional feature of a technical nature contributes something to the claimed invention beyond a trivial level?
- Relevant legal provisions
- Directive 98/44/EC of 6 July 1998 Art 2(2)European Patent Convention Art 100 1973European Patent Convention Art 112(1)(a) 1973European Patent Convention Art 123(2) 1973European Patent Convention Art 53(b) 1973European Patent Convention Art 54 1973European Patent Convention Art 56 1973European Patent Convention Art 83 1973European Patent Convention Art 87 1973European Patent Convention Art 88 1973European Patent Convention R 23b(5) 1973Strasbourg Patent Convention Art 2(b)
- Keywords
- Added subject-matter (no)
Sufficiency of disclosure (yes)
Entitlement to priority (yes)
Novelty (yes)
Inventive step (yes)
Exclusion of essentially biological processes for the production of plants - important point of law - referral of questions to the Enlarged Board of Appeal - Catchword
- -
CONCLUSION
67. In view of the above, the board comes to the conclusion that two questions of law as set out in the Order below should be referred to the Enlarged Board of Appeal in accordance with Article 112(1)(a) EPC. When formulating the questions, the board has duly taken into account the suggestions made by appellant II (see page 10 of its written submissions of 4 April 2006). However, the questions have been framed more broadly in order to avoid restricting the Enlarged Board in its task of determining the correct interpretation of the process exclusion of Article 53(b) EPC.
ORDER
For these reasons it is decided that:
The following questions are referred to the Enlarged Board of Appeal for decision:
1. Does a non-microbiological process for the production of plants which contains the steps of crossing and selecting plants escape the exclusion of Article 53(b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selection, an additional feature of a technical nature?
2. If question 1 is answered in the negative, what are the relevant criteria for distinguishing non-microbiological plant production processes excluded from patent protection under Article 53(b) EPC from non-excluded ones? In particular, is it relevant where the essence of the claimed invention lies and/or whether the additional feature of a technical nature contributes something to the claimed invention beyond a trivial level?