While this decision from the EPO Technical Board of Appeal raises more questions than it answers, it does a very good job of framing the issues and uncertainty regarding the patentability of plants in the EPO. The claim was to a broccoli plant containing elevated levels of certain anti-cancer compounds. The plant was claimed in product by process form that recited only conventional breeding and selection step. However, while plant varieties are not patentable in the EPO, and conventional plant breeding methods are not patentable either, the question remains as to whether improved plants that are not claimed as varietals but that are made by conventional breeding methods are patentable.
You can find a guest post on this decision “Broccoli Reheated — Second Referral to The EPO Enlarged Board of Appeal” by Dr. Stefan Danner below.