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5 February 2019
Case T 1063/18 concerns the appeal by the applicant against the decision of an examining division to refuse European patent application no. 12 756 468.0 (publication no. EP 2 753 168) for the sole reason that it considered the claimed subject-matter to be plants exclusively obtained by means of an essentially biological process which fell within the exception to patentability according to Article 53(b) and Rule 28(2) EPC.
Technical Board of Appeal 3.3.04, in an enlarged composition consisting of three technically and two legally qualified members, decided that Rule 28(2) EPC (see OJ 2017, A56) was in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13. In these decisions, the Enlarged Board of Appeal had concluded that the exclusion of essentially biological processes for the production of plants in Article 53(b) EPC did not have a negative effect on the allowability of a product claim directed to plants or plant material.
In the reasons for its written decision in case T 1063/18 issued today, the technical board stated that Rule 28(2) EPC could not be interpreted in such a way that it was not in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal. The board also saw no reason to deviate from the interpretation of the Enlarged Board. The board concluded that, in view of Article 164(2) EPC, the provisions of the Convention prevailed.