Patent ability for broccoli and tomato plant not excluded bij article 53(b) EPC

Print this page 14-04-2015
IPPT20150325, EBA-EPO, Broccoli II - Tomato II



Allowable product claim directed to plants or plant material such as plant parts or fruits.

Fact that only an essentially biological process or a product-by-process claim is available for the claimed subject matter (other than plant varieties) does not make the claims unallowable.


Product-by-process claim protects the product, not the process and is only allowable if (a) it is impossible to define the claimed product other than in terms of a process of manufacture and (b) the claimed product itself meets the patentability requirements.


Rules for interpretation of EPC: it is established in the jurisprudence that the principles of interpretation provided for in Articles 31 and 32 Vienna Convention are to be applied when interpreting the EPC. Decisions and opinions given by national courts in interpreting the law may also be taken into consideration.


No general notion of an obligatory restrictive construction of exceptions to patentability.


IPPT20150325, EBA-EPO, Broccoli II – Tomato II


G 0002/12 - G002/13