Excluded essentially biological process: process containing sexually crossing
• A non-microbiological process for the produc-tion of plants which contains or consists of the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is in principle ex-cluded from patentability as being "essentially biological" within the meaning of Article 53(b) EPC.
Excluded also if process of sexually crossing con-tains technical step enabling or assisting sexual crossing
• Such a process does not escape the exclusion of Article 53(b) EPC merely because it contains, as a further step or as part of any of the steps of crossing and selec-tion, a step of a technical nature which serves to enable or assist the performance of the steps of sexually cross-ing the whole genomes of plants or of subsequently selecting plants.
Non-excluded; process containing step which by it-self introduces or modifies a trait in the genome of the plant produced
• If, however, such a process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself intro-duces a trait into the genome or modifies a trait in the genome of the plant produced, so that the intro-duction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then the process is not excluded from patentability under Article 53(b) EPC.
Nature of additional technical step irrelevant
• In the context of examining whether such a process is excluded from patentability as being "es-sentially biological" within the meaning of Article 53(b) EPC, it is not relevant whether a step of a technical nature is a new or known measure, whether it is trivial or a fundamental alteration of a known process, whether it does or could occur in nature or whether the essence of the invention lies in it.