EPO Enlarged Board of Appeal Rules on Plant-Patentability in Broccoli II and Tomatoes II Decision
Article 53(b) EPC outlines that European patents shall not be granted for plant varieties or essentially biological processes for the production of plants. The Enlarged Board of Appeal at the EPO has clarified this statement in their decision, concluding that whilst essentially biological processes for the production of plants cannot be patented, novel and inventive plants or plant material obtained by these processes can be, whether claimed in a product or a product-by-process format. In particular, the fact that the only method of obtaining the novel or inventive plant material at the time of application is an essentially biological process does not render the claim unallowable.
This is good news for plant breeders; however, several groups have criticised this decision, believing it to favour large multinational companies at the expense of small breeding companies.