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June 2008: Broccoli case joined by Wrinkeled Tomato

The European Patent Office added another patent case to the Broccoli. There are now two cases the Enlarged Board of Appeal has to deal with: The broccoli and the so called wrinkled tomato, a plant derived from conventional breeding (just as the Broccoli):

Basic Data for the Wrinkled Tomato T 1/08

EP1211926 B1 granted at the 26/11/2003

The patent is granted in Europe, in AT, DE, ES and in AU, CN, US. Situation in IL and JP unclear.

Applicant: STATE OF ISRAEL-MINISTRY OF AGRICULTURE (IL)

Representative: Vossius & Partner, Siebertstrasse 4, 81675 München

Priority document: IL19990131509 19/08/1999

Publication of application: WO0113708 A1 01/03/2001; EP1211926 A1 12/06/2002

VERFAHREN ZUR ZUCHT VON TOMATEN MIT NIEDRIGEM WASSERGEHALT UND PRODUKT DIESES VERFAHRENS

METHOD FOR BREEDING TOMATOES HAVING REDUCED WATER CONTENT AND PRODUCT OF THE METHOD

PROCEDE PERMETTANT DE CULTIVER DES TOMATES AYANT UNE TENEUR EN EAU REDUITE ET PRODUIT OBTENU AU MOYEN DE CE PROCEDE

Opponent: Unilever N.V. NL-3013 AL Rotterdam / NL

Representative of Opponent: Tjon, Hon Kong Guno (Unilever Patent Group)

Date of oral proceedings: 16/03/2006

Dispatch of interlocutory decision in opposition: 29/05/2006

Appeal(s) following opposition: Appeal received 08/08/2006 No. T1242/06

Appeal received 07/08/2006 No. T1242/06

Dispatch of interlocutory decision from Technical Board: 08.04.2008

Some remarks:

The patent is granted exactly as it was applied. There was not any change during examination.

Opposition by Unilever: The reasons for opposition:

The invention is excluded from patentability, it lacks sufficient disclosure, novelty and inventive step.

Decision of the Technical Board:

Most part of this decision is about the questions of G 2/07 and the present case, considerations about patentability of breeding processes, not that they are not patenable. What kind of technical step is necessary in a invention to escape Art. 53 b)? Does breeding and selecting plants fall under the exclusion of Art. 53 b) only if theses steps and phenomena could occur in nature without human invention?