A Product Resulting From An Essentially Biological Process Can Be Patentable

According to Article 53(b) of the European Patent Convention (EPC), plant varieties as well as essentially biological processes for the production of plants (processes which do not introduce or modify a trait into the genome of the plants) are excluded from patentability. Few days ago, in relation to the widely known “Broccoli II” and “Tomato II” cases, the Enlarged Board of Appeal (EBA) of the EPO has clarified that Article 53(b) EPC “does not have a negative effect on the allowability of a product claim directed to plants or plant material”. Thus, a product or a product-by-process is different subject-matter from the essentially biological process through which is obtained and it is patentable, even if the product can only be obtained by a process excluded from patentability.