EPO Board of Appeal refers case to the Enlarged Board of Appeal

In a decision of May 31, 2012, a Board of Appeal of the European Patent Office has referred a case to the Enlarged Board of Appeal in order to obtain clarification about several questions of law. The patent claims at issue are directed to transgenic plants which are not directly excluded from patentability under Article 53(b) EPC. The Enlarged Board of Appeal shall decide whether a claim directed to plants or plant material other than a plant variety is allowable even if the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants which is disclosed in the patent application. The underlying question is whether the exclusion of an essentially biological process for the production of plants from patentability under Article 53(b) EPC has a negative effect on the allowability of a product claim.