On March 25, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) handed a victory to those seeking to protect plant inventions in Europe. The EBA found that the essentially biological processes exclusion of Article 53(b) of the European Patent Convention (EPC) does not negatively affect the allowability of claims directed to plants or plant products.

The appeal concerned patents directed to the products of tomato and broccoli plants (i.e., tomato fruit and broccoli florets). At issue was whether the claims were patent-eligible given Article 53(b) EPC’s exclusion from patentability of “essentially biological processes for the production of plants.” The EPO’s Technical Board of Appeal referred the issue to the EBA, so it could resolve the important legal question. In its analysis, the EBA found that — like other patent-eligibility exclusions — the language of Article 53(b) should be construed narrowly.