(1) Can the exclusion of essentially biological processes for the produc- tion of plants in Article 53(b) EPC have a negative effect on the allow- ability of a product claim directed to plants or plant material such as a fruit?
(2) In particular, is a claim directed to plants or plant material other than a plant variety allowable even if the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application?
(3) Is it of relevance in the context of questions 1 and 2 that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants excluded as such under Article 53(b) EPC?
The text of the referral in English is avail- able on the EPO Website under http:// documents.epo.org/projects/babylon/ eponet.nsf/0/A66F2F3B869 C5EFCC1257A15002A9A68/$File/ g2_12_T1242_06.pdf
The Enlarged Board of Appeal consid- ering the referral will be composed as follows: W. van der Eijk (Chairman), B. Gnzel, C. Floyd, R. Menapace, U. Oswald, J. Riolo, G. Weiss
Third parties are hereby given the opportunity to file written statements in accordance with Article 10 of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2007, 303 ff) in one of the official languages of the EPO (English, French or German).
To ensure that any such statements can be given due consideration they should be filed by the end of November 2012 with the Registry of the Enlarged Board of Appeal, quoting case number G 2/12.
Each statement should also be accom- panied by a list of cited documents and copies of any such documents not previously filed.
Date retrieved: May 20, 2014