BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Communication from the Enlarged Board of Appeal concerning case G 2/07
In accordance with Article 112(1)(a) EPC, the Technical Board of Appeal 3.3.04 has referred the following points of law to the Enlarged Board of Appeal with interlocutory decision of 22.5.07 in case T 83/05:
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?
The text of the referral in the English language is available on the Website of the European Patent Office under http://www.epo.org/patents/appeals/pending.html.
The Enlarged Board of Appeal considering the referral will be composed as follows:
P. Messerli (Chairman), B. Günzel, R. Freimuth, L. Galligani, K. Klett, A. Linder, S. Perryman.
It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 11b of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2003, 59). To ensure that any such statements can be given due consideration without holding up the proceedings more than necessary, they should be filed by the end of December 2007 at the Registry of the Enlarged Board of Appeal, quoting case number G 2/07.