Art 53 (b) EPC provides that patents shall not be granted in respect of:
"plant or animal varieties or essentially biological processes for the production of plants or animals; this provision does not apply to microbiological processes or the products thereof."
The claim in question was for a glyphosate tolerant plant comprising plant cells of a previous claim and that previous claim was directed to a glyphosate tolerant plant cell comprising a previously specified DNA molecule.
Relying on G1/98 Novartis , the Board held that the claim was not excluded from patentability because it was addressed to glyphosate-tolerant plants in general and not to specific plant varieties. In Novartis (OJ EPO 2000, 111) the Enlarged Board held that a claim in which specific plant varieties are not individually claimed is not excluded from patentability even though it may embrace plant varieties.
Greenpeace also wanted to adduce expert evidence on whether plant patenting was contrary to "ordre public" or morality under art 53 (a) but permission to call that evidence was denied on grounds of procedural fairness.
Two short points arise out of this. The first is that even though we don't have antigen's like the plant patents that are available in the USA, we do have plant varieties protection. My colleague, Dr Alex Khan, from these chambers is an expert in this area and he has written a lot of good stuff. I particularly commend his PowerPoint presentation "Progeny protection: Plant Varieties in the 21st Century." Secondly, those who want to find a quick guide to the "judicial branch" of the EPO will find a useful introduction on the "Legislative Initiatives" page on the EPO site. Quite a few changes are planned as visitors will see.