EPO Enlarged Board of Appeal Appoints Oral Proceedings in ‘Broccoli/Tomatoes II’ Cases

The EPO's Enlarged Board of Appeal has appointed oral proceedings in the so-called "Tomatoes II" and "Broccoli II" cases (G2/12 and G2/13), which relate to the patentability of plants under Article 53(b) EPC. This Article prohibits the patenting of plant and animal varieties and essentially biological processes for the production of plants and animals. In December 2010, the EPO's Enlarged Board of Appeal issued its original "Broccoli" and "Tomatoes" decisions, which took a strict view on the exclusion of essentially biological processes. These decisions did not however address explicitly whether or not it is legitimate to claim the products of such processes, e.g. novel and inventive plants obtained by "classical" breeding, even though processes for their production are patent-ineligible. This subsequently became the subject of the further "Tomatoes II" and "Broccoli II" referrals to the Enlarged Board of Appeal.

These further referrals have been pending since 2012/13 respectively, during which time the parties to the cases and other interested groups have made submissions to the Enlarged Board of Appeal. In late June 2014, the Enlarged Board of Appeal appointed Oral Proceedings and intends to hear the parties in person on 27 October 2014. It will likely not give a decision immediately at the end of this oral hearing but perhaps can be expected to issue one in late 2014 or early 2015.