By Amanda Liverzani – Edited by Paulius Jurcys
Decision of the Enlarged Board of Appeal, Case Number G 002/13 (Mar. 25, 2015)
Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants. In a March 25, 2015 decision, the Enlarged Board of Appeal (“EBA”) held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.” Decision of the Enlarged Board of Appeal, Case Number G 002/13 (Mar. 25, 2015) at 68.
The European Patent Office’s Technical Board of Appeals referred the question of Article 53(b) scope to the EBA in connection with two cases, “Tomato II” and “Broccoli II.” The patent at issue in Tomato II, European patent No. 1 211 926, concerns “a method for breeding tomatoes having reduced water content, and the product of the method.” Id. at 4. Broccoli II involves European patent No. 1 069 819, which was directed at broccoli produced through “a method for selective increase of the anticarcinogenic glucosinates in brassica species.” Id. at 12.