Technical Board submits questions in the "Broccoli" patent case

10 July 2013

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The Technical Board of Appeal in the proceedings T 83/05 concerning the so-called "Broccoli" patent has decided to refer further questions of law to the Enlarged Board of Appeal of the EPO (EBoA).

As in the second referral relating to the "Tomato" patent case ("Tomato 2"), pending as case G 2/12 before the EBoA, the questions seek to clarify whether the exclusion of essentially biological processes for the production of plants may affect the allowability of product claims directed to plants or plant parts. Moreover, they include further aspects of importance for the "Broccoli" case, such as the relevance of the product-by-process claim format and the possibility of disclaiming parts of the protection conferred by product claims. The intention to refer was already announced by the board in the oral proceedings on 1 March 2013 before it decided to continue the appeal procedure in writing.

The present referral ("Broccoli 2") was caused by new procedural requests of the patent proprietor, Plant Bioscience Ltd, and the opponents to the patent, Syngenta and Limagrain, which were submitted at a very late stage of the proceedings in view of the developments in the "Tomato" case.

The first referral in the "Broccoli" case ("Broccoli 1") had led to decision G 2/07 of the EBoA, which had clarified the circumstances under which plant breeding methods are excluded from patentability as essentially biological processes for the production of plants. The "Broccoli 2"-  and "Tomato 2"- referrals now aim to establish whether plants obtained from such non-patentable breeding methods are patentable under the European Patent Convention. A publication date for a ruling in this case has not been announced.

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