EPO Technical Board of Appeal considers Plants produced by Essentially Biological Process are in fact Patentable
December 2018
In an appeal from an Examining Division decision, the Board of Appeal stated that the recently introduced R.28(2) EPC is in conflict with A.53(b) EPC as interpreted in both the Enlarged Board decisions G2/12 and G2/13 (“broccoli II” and “tomatoes II”). The Board held that under A.164(2) EPC the provisions of the convention, i.e. the Articles of the EPC, must prevail. Effectively, the Board indicated that G2/12 and G2/13 should be followed in allowing claims to plants produced by essentially biological processes, and that the contradictory R.28(2) EPC should be considered void.
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