5.4.2.1 Examples 

The following subject-matter relates to essentially biological processes excluded from patentability:

– Method for the production of plants having trait X comprising crossing plants A and B and selecting progeny having marker X. 

– Use of a (transgenic) plant for generating further plants by crossing and selection. 

– Use of a (transgenic) animal for breeding. 

– Introgression of a (transgenic) gene X into a plant, i.e. introducing it into the genome by crossing and selection. 

– Methods for plant breeding by crossing of whole genomes and selection of plants comprising the step of embryo rescue. 

The following subject-matter relates to products exclusively obtained by means of an essentially biological process which are excluded from patentability where the application in question has a date of filing date or priority date after 1 July 2017 (see G 3/19):

– A plant produced by introgression of gene A, i.e. by introducing it into the genome by crossing and selection. 

– A plant produced exclusively by crossing and selection, wherein molecular markers are used to assist the selection process. 

– A plant part obtained exclusively by means of an essentially biological process which is propagation material, e.g. a seed or plant embryo. 

– A cultivated pepper plant expressing a mutant AHAS enzyme 

The following subject-matter is not excluded from patentability under Art. 53(b):

– Method of producing a (transgenic) plant having trait X comprising introducing by transformation a vector comprising the sequence of SEQ ID NO: 1. 

– Method for selecting animals having phenotype Y by screening for the presence of a marker having the sequence shown in SEQ ID NO: 1. 

– Use of the nucleic acid of SEQ ID NO: 1 to select a plant having trait X. 

– A mutant of a plant carrying a heritable exchange in a nucleotide sequence effected by technical means, e.g. UV mutagenesis or CRISPR/Cas with the proviso that the plant is not exclusively obtained by means of an essentially biological process (EBP). 

– A transgenic plant carrying transgene X. 

– Progeny of a mutant (wherein the mutant is not exclusively produced by EBP) or a transgenic plant which carries the mutation/the transgene. 

– A seed of a wild-type plant covered with a chemical which inhibits fungal growth. 

– Flour or oil produced from plant X (even if it is apparent from the description that the plant was exclusively obtained by means of an essentially biological method).