The EPO’s Enlarged Board of Appeal has just handed down its decisions in relation to G2/12 and G2/13 more affectionately referred to as Tomatoes II and Broccoli II, which relate to the patentability of plants under the European Patent Convention (EPC), in particular Article 53(b) EPC.

Under the Article 53(b) EPC plant and animal varieties, as well as essentially biological processes are excluded from patent protection. In Tomatoes I and Broccoli I (G1/08 and G2/07, respectively), decided in December 2010, the EPO’s Enlarged Board of Appeal took a strict view to the meaning of “essentially biological processes”. However, the earlier decisions did not address the patentability of a product obtained by such essentially biological processes.

The Enlarged Board of Appeal handed down decisions last week addressing this issue. It has been confirmed that the exclusion to an “essentially biological process” does not apply to product claims. Therefore, in principle, claims directed to novel and inventive plants obtained by methods which include breeding steps can be allowable.

This is good news for agricultural businesses and settles an area of law that has remained unclear for some time.

The decision can be read here.