G 1-08 and G2-07, European Patent Office (EPO Enlarged Board of Appeal), 9 December 2010
January 17, 2011
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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