T 0356/93 (Plant cells) of 21.2.1995

European Case Law Identifier: ECLI:EP:BA:1995:T035693.19950221
Date of decision: 21 February 1995
Case number: T 0356/93
Application number: 87400141.5
IPC class: C12N 15/00
Language of proceedings: EN
Distribution: A
Download and more information:
Decision text in EN (PDF, 1.784M)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: OJ | Published
Title of application: Plant cells resistant to glutamine synthetase inhibitors, made by genetic engineering
Applicant name: PLANT GENETIC SYSTEMS N.V., et al
Opponent name: Greenpeace Ltd.
Board: 3.3.04
Headnote: 1. Under Article 53(a) EPC, inventions the exploitation of which is likely to seriously prejudice the environment are to be excluded from patentability as being contrary to "ordre public" (cf. point 5 of the Reasons). However, a decision in this respect presupposes that the threat to the environment be sufficiently substantiated at the time the decision is taken by the EPO (cf. point 18.5 of the Reasons).
2. The concept of "plant varieties" under Article 53(b) EPC, first half-sentence, refers to any plant grouping within a single botanical taxon of the lowest-known rank which is characterised by at least one single transmissible characteristic distinguishing it from other plant groupings and which is sufficiently homogeneous and stable in its relevant characteristics (cf. point 23 of the Reasons).
3. Plant cells as such cannot be considered to fall under the definition of a plant or of a plant variety. Rather they are considered to be "microbiological products" in the broad sense (cf. point 23 of the Reasons).
4. The term "microorganism" includes plasmids, viruses and all generally unicellular organisms with dimensions beneath the limits of vision which can be propagated and manipulated in a laboratory (cf. point 34 of the Reasons).
5. The concept of "microbiological processes" under Article 53(b) EPC, second half-sentence, refers to processes in which microorganisms (or their parts) are used to make or to modify products or in which new microorganisms are developed for specific uses. Consequently, the concept of "products thereof" under Article 53(b) EPC, send half-sentence, encompasses products which are made or modified by microorganisms as well as new microorganisms as such (cf. point 36 of the Reasons).
6. "Technical processes including a microbiological step" (here: a process for producing a plant) may not simply be equated with "microbiological processes". Nor can the resulting final products of such technical processes (e.g. plant varieties) be defined as "products of microbiological processes" within the meaning of Article 53(b) EPC, second half-sentence (cf. point 39 of the Reasons).
7. A claim is not allowable if the grant of a patent in respect of the invention defined in said claim is conducive to an evasion of a provision of the EPC establishing an exception to patentability. Hence, a claim which encompasses plant varieties is only allowable, if the exception to patentability under Article 53(b) EPC, first half-sentence, concerning plant varieties does not apply, because the subject-matter of the claim is to be regarded as the product of a microbiological process (cf. point 40.7 and 40.8 of the Reasons).
Relevant legal provisions:
European Patent Convention 1973 Art 53(a)
European Patent Convention 1973 Art 53(b)
Keywords: Contrary to ordre public (no)
Contrary to morality (no)
Exception to patentability - plant varieties (yes) - main, first, second auxiliary request - general claim encompassing plant varieties not allowable
Plant as product of a microbiological process (no)
Exception to patentability - plant cells (no)
Exception to patentability - essentially biological process (no)
Catchwords:

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Cited decisions:
T 0049/83
T 0290/86
T 0016/87
T 0320/87
T 0544/89
T 0565/89
T 0019/90
Citing decisions:
G 0001/98
G 0002/07
G 0001/08
G 0002/12
G 0002/13
T 0377/95
T 1054/96
T 0179/01
T 0475/01
T 0866/01
T 0315/03
T 1374/04
T 0083/05
T 0915/10

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EPO Guidelines - G Patentability

Offical Journal of the EPO

Case Law Book: I Patentability

Case Law of the Enlarged Board

General Case Law