T 0547/10 - No plant variety

Key points

• The Board finds that a claim directed to transgenic "cotton plants" does not constitute an (excluded) plant varieties, because the requirement of Rule 26(4)(a) EPC is not met because the claimed plants are not defined "by the expression of the characteristics that results from a given genotype or combination of genotypes"

EPO T 0547/10 - link

Plant varieties (Article 53(b) EPC)

6. The subject-matter of claim 1 are cotton plants, where the term "cotton" is used in the art as a synonym for the plant species Gossypium hirsutum (see application, page 2, line 17). "Species" is the botanical taxon of the rank falling below the taxon "genus". The population of plants that constitutes a plant species includes within it, inter alia, sub-groupings known as plant varieties, as defined in Rule 26(4) EPC.

7. The claimed transgenic cotton plants (including those plant parts that can be used to regenerate whole plants) are defined (see section V above) as containing the DNA of a modified epsps gene from Zea mays under the control of a plant-expressible promoter and a closely linked portion of the adjoining cotton chromosome characterising the so-called elite event (hereinafter "the event"). This structural feature provides these plants with an improved glyphosate tolerance compared to cotton plants containing the MON 88913 event (see point 22 below).

8. Thus, the claimed group of plants embraces an indefinite number of individual plants which are all defined by the presence of the event referred to in claim 1. Hence, the plants as claimed are not defined by the entire constitution of a plant or a set of genetic information, i.e. they are not defined "by the expression of the characteristics that results from a given genotype or combination of genotypes" (see Rule 26(4)(a) EPC).

9. Since one of the requirements set out in Rule 26(4) EPC for a plant to be considered as a variety is not fulfilled, the board concludes that the plants according to claim 1 do not constitute a plant variety, as defined in Rule 26(4) EPC.

10. Moreover, the technical feasibility of the invention of claim 1 with respect to the improved glyphosate tolerance is not confined to one plant variety or group of plant varieties, but applies to cotton plants with "multiple genetic backgrounds" (see page 29, lines 1 to 5 of the application), i.e. cotton plants in general (see Rule 27(b) EPC).

11. Accordingly, the board is satisfied that the subject-matter of claim 1 does not constitute a plant variety or varieties and is thus not excepted from patentability pursuant to Article 53(b) EPC.