One of the precedent cases at the European Patent Office (G2/07)
After starting the Broccoli case in 2007, a second case related to “essentially biological processes for the production of plants and animals” (Art 53b of the European Patent Convention) was forwarded to the Enlarged Board of Appeal of the European Patent Office in May 2008. The patent EP 1211926 on tomatoes is owned by the Ministry of Agriculture of the State of Israel.
Both cases were joined and in december 2010 the Enlarged Board of Appeal ruled that methods for conventional breeding of plants and animals cannot be considered as a technical process and therefor cannot be covered by patents.
Both cases wre referred back to the Board of Appeal for individual rulings. On Oct 26, 2011 the hearing on the broccoli was annuled, because the parties came to an agreement.
On November 8th, 2011 the Board of Appeal held the hearing on the tomato and decided to refer the case once again to the Enlarged Board of Appeal, for a ruling on whether or not "products" (i.e. the plants) derived by methods of conventional breeding are also excluded from patentability.
The ruling by the Enlarged Board of Appeal will be decisive and final. The exact questions to be put before the Board are not yet known. The procedure might take upto two years.
