From the magazine sic! 7-8/2019 | S. 457-464 The following page is 457

Patentability of plants after T 1063/18: «Now we have the Salad»1

While Art. 53(b) European Patent Convention (EPC) clearly excludes essentially biological processes for the production of plants and animals from patentability, it is currently a highly controversial issue whether plants which are obtained by such a process are also excluded from patentability. The Enlarged Board of Appeal held in the well-known “Tomato I” (G 1/08) and “Broccoli I” (G 2/07) decisions that genetically modified plants are indeed patentable under the EPC. In the subsequent decisions “Tomato II” (G 2/12) and “Broccoli II” (G 2/13), the Enlarged Board of Appeal affirmed that plants obtained by an essentially biological process are also patentable, even if the claim is formulated as a product-by-process claim. However, this interpretation of the EPC was regarded as not being in line with the EU Biotechnology Directive 98/44/EC of July 1998, as well as a European Commission Notice, which contradict the Enlarged Board of Appeal’s “Tomato II” and “Broccoli II” decisions…