T 1242/06 (Tomatoes II/STATE OF ISRAEL) of 31.05.2012
- European Case Law Identifier
- ECLI:EP:BA:2012:T124206.20120531
- Date of decision
- 31 May 2012
- Case number
- T 1242/06
- Petition for review of
- -
- Application number
- 00940724.8
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- Other decisions for this case
- T 1242/06 Tomatoes/STATE OF ISRAEL 2008-04-04T 1242/06 Tomaten/STAAT ISRAEL 2008-04-04T 1242/06 Tomates/ETAT D'ISRAEL 2008-04-04T 1242/06 Tomatoes/STATE OF ISRAEL 2008-04-04T 1242/06 Tomatoes III/STATE OF ISRAEL 2015-12-08
- Abstracts for this decision
- -
- Application title
- Method for breeding tomatoes having reduced water content and product of the method
- Applicant name
- State of Israel - Ministry of Agriculture
- Opponent name
- Unilever N.V.
- Board
- 3.3.04
- Headnote
- -
- Relevant legal provisions
- Agreement on Trade-Related Aspects of Intellectual Property Rights Art 28(1)(a)Agreement on Trade-Related Aspects of Intellectual Property Rights Art 28(1)(b)Council Regulation (EC) No. 2100/94 of 27 July 1994 on Community Plant Variety Rights (CPVR Regulation) Art 5(2),(3), 13(2),(6)Directive 98/44 EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (Biotech Directive) Art 2(3), 6(2)(c)European Patent Convention Art 100(a)European Patent Convention Art 100(a) 1973European Patent Convention Art 112 1973European Patent Convention Art 123(2)European Patent Convention Art 123(2) 1973European Patent Convention Art 123(3)European Patent Convention Art 123(3) 1973European Patent Convention Art 164(2)European Patent Convention Art 53(a)European Patent Convention Art 53(a) 1973European Patent Convention Art 53(b)European Patent Convention Art 53(b) 1973European Patent Convention Art 53(c)European Patent Convention Art 54 1973European Patent Convention Art 64(2)European Patent Convention Art 64(2) 1973European Patent Convention Art 84European Patent Convention R 23b(4) 1973European Patent Convention R 23b(5) 1973European Patent Convention R 23c(b) 1973European Patent Convention R 26(4)European Patent Convention R 26(5)European Patent Convention R 27(b)European Patent Convention R 27(c)European Patent Convention R 28(c)European Patent Convention R 43(2)European Patent Convention R 80French Intellectual Property Code Art L613-5-3Rules of procedure of the Boards of Appeal Art 13Strasbourg Convention on the Unification of Certain Points of Substantive Law on Patents for Invention (Strasbourg Convention) Art 2(b)UPOV Convention 1991 Art 1(vi)UPOV Convention 1991 Art 14(1)UPOV Convention 1991 Art 14(2)UPOV Convention 1991 Art 14(5)(b)
- Keywords
- Exclusion of essentially biological processes for the production of plants - possible effect on allowability of product claim for plants or plant material - important point of law - referral of questions to the Enlarged Board of Appeal
- Catchword
- -
ORDER
For these reasons it is decided that:
I. Appellant I's main request is refused.
II. The following questions are referred to the Enlarged Board of Appeal for decision:
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 a fruit?
2. In particular, 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?