T 0356/93 (Plant cells) of 21.02.1995

1. Under Article 53(a) EPC, inventions the exploitation of which is likely to seriously prejudice the environment are to be excluded from patentability as being contrary to "ordre public" (see point 5 of the reasons). However, a decision in this respect presupposes that the threat to the environment be sufficiently substantiated at the time the decision is taken by the EPO (see point 18.5 of the reasons).

2. The concept of "plant varieties" under Article 53(b), first half-sentence, EPC, refers to any plant grouping within a single botanical taxon of the lowest-known rank which is characterised by at least one single transmissible characteristic distinguishing it from other plant groupings and which is sufficiently homogeneous and stable in its relevant characteristics (see point 23 of the reasons).

3. Plant cells as such cannot be considered to fall under the definition of a plant or of a plant variety. Rather they are considered to be "microbiological products" in the broad sense (see point 23 of the reasons).

4. The term "micro-organism" includes plasmids, viruses and all generally unicellular organisms with dimensions beneath the limits of vision which can be propagated and manipulated in a laboratory (see point 34 of the reasons).

5.The concept of "microbiological processes" under Article 53(b), second half-sentence, EPC, refers to processes in which micro-organisms (or their parts) are used to make or to modify products or in which new micro-organisms are developed for specific uses. Consequently, the concept of "products thereof" under Article 53(b) EPC, second half- sentence, encompasses products which are made or modified by micro-organisms as well as new micro-organisms as such (see point 36 of the reasons).

6. "Technical processes including a microbiological step" (here: a process for producing a plant) may not simply be equated with "microbiological processes". Nor can the resulting final products of such technical processes (eg plant varieties) be defined as "products of microbiological processes" within the meaning of Article 53(b), second half- sentence, EPC, (see point 39 of the reasons).

7. A claim is not allowable if the grant of a patent in respect of the invention defined in said claim is conducive to an evasion of a provision of the EPC establishing an exception to patentability. Hence, a claim which encompasses plant varieties is only allowable, if the exception to patentability under Article 53(b), first half-sentence, EPC, concerning plant varieties does not apply, because the subject-matter of the claim is to be regarded as the product of a microbiological process (see points 40.7 and 40.8 of the reasons).