T 0083/05 - Broccoli III

EPO T 0083/05 

For the decision, click here [C]

Key points

• This case is the follow-up of G 2/13.
• Claim 1 at issue is for: " An edible Brassica plant produced according to a method for the production of Brassica oleracea with elevated levels of 4-methylsulfinylbutyl glucosinolates, or 3-methylsulfinylpropyl glucosinolates, or both, which comprises..."
• The Board recalls that in its first decision T 83/05, it had already decided that the then pending Main Request complied with Articles 545, 56, 83 and 123(2) EPC. The ratio decidendi of that decision also applies to the present decision. Decision G 2/13 indicates that the present product claims are allowable under Article 53(b) EPC. Therefore, the claims are allowable.

Reasons for the Decision

1. The board ruled in its second interlocutory decision, supra, that the ratio decidendi of its first interlocutory decision (see section IV above), according to which the main request fulfilled the requirements of Articles 54, 56, 83 and 123(2) EPC, applied (see also section VIII above). In the same decision the board also held that the plants and parts of plants claimed did not fall under the exclusion of plant varieties as laid down in Article 53(b) EPC and defined in Rule 26(4) EPC (see section VIII above and the second interlocutory decision of 8 July 2013, supra, point 16). The ratio decidendi of this interim decision of the board also applies to the main request.

2. The ruling in decision G 2/13 of the Enlarged Board of Appeal of 25 March 2015, supra, has clarified that the process exclusion contained in Article 53(b) EPC has no negative impact on the allowability of product claims as contained in the respondent's main request.

3. The appellants have not submitted any arguments that the ruling in decision G 2/13 of the Enlarged Board of Appeal of 25 March 2015, supra, does not apply to the subject-matter of the claims of the main request. The board has none either.

4. Accordingly, the board decides that the main request complies with the requirements of the EPC.

5. In view of the fact that the order of the present decision is in line with the respondent's final request (1) (see section XIV above) and that the appellants have no further objections (see sections XII and XIII above), no further oral proceedings are required.

6. Irrespective of whether or not the appellants' latest submissions before the board can be interpreted as implying - as argued by the respondent (see section XIV above) - that the appellants had no objections to the pages of the amended description submitted by the respondent with the letter dated 22 May 2015 (see section XI above), the board exercises its discretion under Article 111(1) EPC to remit the case to the department of first instance to adapt the description in order to avoid a further prolongation of the appeal proceedings and consequent delay in the final decision of the board in this case.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the department of first instance with the order to maintain the patent on the basis of the following documents:

- claims 1 to 5 of the main request filed with the letter dated 29 April 2011,

- a description yet to be adapted thereto, and

- figures 1 to 5 as granted.