Additional Lessons Learned From Tomato II And Broccoli II

On 25 March 2015, the Enlarged Board of the European Patent Office handed down its decision in the consolidated cases G 2/12 ("Tomato II") and G 2/13 ("Broccoli II"). The decision has been eagerly awaited, see Dennemeyer's newsletter about decision T 1729/06 ("Water melons").

As the interested circles are certainly already well aware of, the Enlarged Board held in G 2/12 and G 3/13 that the exclusion of essentially biological processes for the production of plants under the provisions of the European Patent Convention does not preclude the grant of a patent claim directed to a plant obtained in such a process; see Catchword 1. This is also true if (i) the patent claim is drafted as a product-by-process claim and (ii) the claimed plant can only be produced in an essentially biological process; see Catchword 2.