Decision in case T 1063/18 on the patentability of plants

7 December 2018

Case T 1063/18 concerns the appeal by the applicant against the decision of the examining division to refuse European patent application no. 12 756 468.0 (publication no. EP 2 753 168) for the sole reason that the claimed subject-matter falls within the exception to patentability according to Article 53(b) and Rule 28(2) EPC (here: plants exclusively obtained by means of an essentially biological process).

At the oral proceedings, which took place on 5 December 2018, Technical Board of Appeal  3304, in an enlarged composition consisting of three technically and two legally qualified members, held that Rule 28(2) EPC (see OJ 2017, A56) is in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13. The Board referred to Article 164(2) EPC, according to which the provisions of the Convention prevail in case of conflict with the Implementing Regulations, and decided to set the decision under appeal aside and to remit the case to the examining division for further prosecution.

The written decision containing the board's full reasons is expected to be issued early next year.

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