Tomatoes II (G 0002/12) and Broccoli II (G 0002/13): European Patent Office’s decisions

The Enlarged Board of Appeal of the European Patent Office has taken two decisions this Wednesday (25 March 2015) highly anticipated by the agrochemical industry in the case Tomatoes II (G 0002/12) and Broccoli II (G 0002/13). The Board held that a patent application for a plant or plant material (such as a part of a plant or fruit) - not limited to a plant variety - could not be refused on the ground that this plant or that plant material would (only) come from an essentially biological process. Under article 53 b) of the European Patent Convention an essentially biological process is namely not patentable. A patent application for a product can only be examined on the basis of conditions for this class of inventions and not by taking into account considerations related to process patents. These two decisions raise some of the uncertainty that prevailed for more than a decade as to the object of patents on plants in favor of patent applicants.