Yes for patents on seeds: the end of Tomato and Broccoli?


In a long awaited decision in what is commonly referred to as the Tomato and Broccoli case, the Enlarged Board of Appeal has ruled that plants obtained by essentially biological processes are patentable.


The question was raised whether patent claims on such plants are allowed, viewing the previous decision of the EPO that such essentially biological processes itself are excluded from patentability.


The Enlarged Board of Appeal has now shed light in the dark: the exclusion of Art. 53(b) with regard to essentially biological processes is not to be extended to products obtained by such processes.


Patents on plants, whether or not solely obtained by breeding, are perfectly allowable, as long as the plants satisfy the conditions of patentability.


The full decision, which surely will provoke debate in Europe, can be read here.




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