2.4.10 Replacement of "cell of a plant" by "plant"

In T 579/01 independent claim 1 and dependent claims 2 to 6 of the new main request were directed to a "vegetable plant", while the respective claims as granted were directed to a "cell in a vegetable plant". The board decided that, considering the totality of protection established by the claims as granted, any plant as subject-matter of claim 1 of the new main request fell within the protection conferred by a claim to "a cell of a plant", and finally that the "plant" now claimed was characterised by the same genetic features as recited in the granted claim to "a cell of a plant". Also taking account of legislative developments in Europe in respect of the legal protection of biotechnological inventions (i.e. Art. 8.1 and 9 of the Biotech Directive), the board concluded that the amendment of the "cell of a plant" claim to a "plant" claim was not contrary to the requirements of Art. 123(3) EPC 1973. For a summary of the findings in T 579/01 see also T 1898/07.