Lately, the EPO is dealing a lot with fruits and vegetables.
Indeed, there are two cases now pending before the EPO, known as the “Tomato” and “Broccoli” cases, where the main issue is the fact that the European Patent Convention (EPC) excludes from patentability “plant or animal varieties or essentially biological processes for the production of plants or animals”, while microbiological processes and the products thereof are patentable. Indeed, these cases each relate to tomatoes and broccoli having special technical features associated at least in part with the way in which the fruits and vegetables were prepared.
Now, the definition of essentially biological processes, so as to better understand which process are essentially biological and thus unpatentable, and which processes are instead patentable, was already provided by the Enlarged Board of Appeal (EBA), i.e. the highest instance of the EPO.
In fact, in two joint decisions (namely decisions G2/07 and G1/08) issued precisely for the above cases the EBA held that “a non-microbiological process for the production of plants which contains or consists of the steps of sexually crossing the whole genomes of plants and of subsequently selecting plants is in principle excluded from patentability”.
The EBA went on to clarify that such a process does not escape the exclusion from patentability merely because it contains, as a further step or as part of any of the steps of crossing and selection, a step of a technical nature which serves to enable or assist the performance of the steps of sexually crossing the whole genomes of plants or of subsequently selecting plants, but it becomes patentable if such a process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing.
After issuance of the EBA decision on December 9, 2010, the “Tomato” and “Broccoli” cases were remitted to the EPO Technical Board of Appeal (TBA) for further decision on the specific cases. In this context, in the “Tomato” case the patentee canceled all method claims, and maintained claims essentially directed to a tomato fruit of a certain species which is naturally dehydrated, wherein natural dehydration is defined as wrinkling of skin of the tomato fruit when the fruit is allowed to remain on the plan after a normal ripe harvest stage, said natural dehydration being generally unaccompanied by microbial spoilage (according to the patentee’s main request after remittal of the case to the TBA).
However, following a hearing in the “Tomato” case which took place on November 8, 2011, it now appears that, even though all method claims were deleted, the TBA is inclined to send further questions to the EBA still relating to the exclusion from patentability of plant or animal varieties or essentially biological processes for the production thereof.
The new TBA questions, if they will indeed be sent to the EBA, are not public yet, but it appears that in the parallel “Broccoli” case at least one party has already asked the TBA to stay the proceedings until the questions are defined and the EBA has decided whether to accept them or not.
It thus appears that this is not yet the end of the story, and that tomatoes and broccoli will continue to play a role at the EPO for quite some time to come.

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