On July 8, 2013, EPO Technical Board of Appeal 3.3.04 handed down the interlocutory decision in case T83/05 (also known as the “Broccoli Patent”), thus referring further questions concerning the patentability of plants to the EPO Enlarged Board of Appeal. (EBA) This second referral is pending as case G2/13. The first referral in this matter resulted in EBA decision G2/07 that had clarified the circumstances under which plant breeding methods are excluded from patentability as essentially biological processes for the production of plants (cf. Newsletter issue of February 2013).
The second referral now aims to establish whether plants or plant parts (i.e., edible portions or seed) obtained from non-patentable breeding methods are as such patentable.