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Press Communiqué of 9 June 2021 on decision T 420/19 from the EPO Boards of Appeal

European patent EP2373154 concerns barley and malt-derived beverages with low dimethyl sulfide level. In its decision announced at the end of the oral proceedings on 8 June 2021, Technical Board of Appeal 3.3.04 upheld the patent as granted.


The patent proprietors are Carlsberg Breweries A/S and Heineken Supply Chain B.V. The joint opponents are Christoph Then, Ruth Tippe, Arbeitsgemeinschaft bäuerliche Landwirtschaft, AG der Umweltbeauftragten in der EKD, Arche Noah, Bund Naturschutz, Brot für die Welt, Campact, Evangelischer Dienst auf Lande, Gen-ethisches Netzwerk, IG Nachbau, Noah, ProSpecieRara, Slow Food Deutschland, Umweltinstitut München and Verband Katholisches Landvolk. 

Both the patent proprietor and the opponents had filed an appeal against the decision of the Opposition Division of the European Patent Office. The Opposition Division had decided that the patent could not be maintained as granted but only in amended form.

Key considerations

Technical Board of Appeal 3.3.04 set aside the decision of the Opposition Division and maintained the patent as granted. 

The Board of Appeal followed the opinion of the Enlarged Board of Appeal in G 3/19 ("Pepper") and, with regard to the patent claim directed to a mutant barley plant, came to the conclusion that the non‑patentability of essentially biological processes for the production of plants or animals under Article 53(b) EPC did not exclude the patent claim under consideration from patentability, as the patent had already been granted before 1 July 2017. The Board of Appeal further decided that the subject-matter of the patent claim under consideration was based on an inventive step (Article 56 EPC) and was disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (Article 83 EPC). 

The written decision will be sent to the parties in due course and will subsequently be publicly available in the decisions database of the Boards of Appeal.


Nikolaus Obrovski 
Jeannine Hoppe 
Spokespersons of the Boards of Appeal of the European Patent Office 

This press release is a non-binding document for media use.