Broccoli en Tomaten-octrooien zijn geldig

EOB Grote kamer van beroep 25 maart 2015, IEFbe 1281; G 2/12 (Tomatoes II) - IEFbe 1281; G 2/13 (Broccoli II)
Octrooirecht op zaden, vruchten en plantmateriaal:
1. The exclusion of essentially biological processes for the production of plants in Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material such as plant parts[Tomatoes: or a fruit].

[Broccoli case only: 2.a. The fact that the process features of a product-by-process claim directed to plants or plant material other than a plant variety define an essentially biological process for the production of plants does not render the claim unallowable.]

2.b. In particular, the fact that the only method available at the filing date for generating the claimed subject-matter is an essentially biological process for the production of plants disclosed in the patent application does not render a claim directed to plants or plant material other than a plant variety unallowable.

3. In the circumstances, it is of no relevance that the protection conferred by the product claim encompasses the generation of the claimed product by means of an essentially biological process for the production of plants excluded as such under Article 53(b) EPC.