G 1-08 and G2-07, European Patent Office (EPO Enlarged Board of Appeal), 9 December 2010

In this decision the EBoA held that sexually crossing of plants is an 'essential biological process' within the meaning of Art. 53(b) EPC. Any claim that contains a step of sexually crossing therefore falls within the exception to patentability, whether or not additional technical measures (e.g. selecting) would be present.

Only if a claim relates to a process wherein the actual step of transferring genetic material is of a technical nature and not the result of a normal sexual crossing, such a claim escapes the exclusion, and will then be judged on compliance with the other requirements under the EPC.

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