Key points
- " The sole reason given by the examining division for rejecting the main request was that the claimed plants were exclusively obtained by means of an essentially biological process and that the subject-matter of claim 1 was therefore excluded from patentability pursuant to Article 53(b) EPC and Rule 28(2) EPC."
- The Board: " as the present application was filed before 1 July 2017, and is still pending [], the new interpretation of Article 53(b) EPC adopted in opinion G 3/19 (supra), does not apply."
- " Furthermore, Article 53(b) EPC, as interpreted by decisions G 2/12 and G 2/13 of the Enlarged Board of Appeal (supra), does not exclude the subject-matter of the main request from patentability. In view of the above considerations, the board concurs with the appellant that the subject-matter of the claims is not excluded from patentability pursuant to Article 53(b) EPC in conjunction with Rule 28(2) EPC."
- As a comment, the Administrative Council decided that Rule 28(2) EPC “shall apply to European patent applications filed on or after this date [01.07.2017], as well as to European patent applications and European patents pending at that time”, Article 3 of the Decision of the Administrative Council 29.06.2017, OJ 2017 A56; i.e. also to applications filed before 1 July 2017 and still pending on 1 July 2017.
T 2796/18 -
Reasons for the Decision
1. The appeal complies with Articles 106 to 108 and Rule 99 EPC and is admissible.
Main request
Exceptions to patentability (Article 53(b) EPC)
2. The sole reason given by the examining division for rejecting the main request was that the claimed plants were exclusively obtained by means of an essentially biological process and that the subject-matter of claim 1 was therefore excluded from patentability pursuant to Article 53(b) EPC and Rule 28(2) EPC.
source http://justpatentlaw.blogspot.com/2022/01/t-279618-rule-282-not-to-be-applied-to.html
