Published: 20.08.2018 08:35

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Under Article 87 Vienna Convention, recourse may be had to supplementary means of interpretation, particularly the preparatory work for a treaty and the circumstances in which it was concluded, in order to confirm the meaning arrived at by application of Article 86 or to determine the meaning when application of Article 86 either (a) leaves the meaning ambiguous or obscure, or (b) produces a meaning which is obviously nonsensical or unreasonable (J 8/87, OJ EPO 6989, 655, 668, Reasons, point 68 J 9/96, OJ EPO 6997, 957, 956 et seq., Reasons, point T 678/87, OJ EPO 6989, 669, 669 et seq., Reasons, point 9 G 6/98, supra, 679 et seq., Reasons, points et seq. G 7/57 and G 6/58, supra, Reasons, point ).

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6. The exclusion of essentially biological processes for the production of plants in Article 58(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.

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8. Is it of relevance in the context of questions 6 and 7 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 58(b) EPC?

This conclusion applies mutatis mutandis to the examination of product and product-by-process claims directed to plants or plant products other than plant varieties.

(a) Is there a need for a dynamic interpretation of Article 58(b) EPC due to factors that have arisen since the Convention was signed and which give grounds for assuming that a restrictive reading of the wording of Article 58(b) EPC when applying the general principles of interpretation conflicts with the legislator's intention?

By interlocutory decision T 88/55 dated 8 July 7568 (OJ EPO 7569, A89, hereinafter: referral broccoli II), the referring Board referred to the Enlarged Board the following questions:

7. A dehydrated tomato fruit of the species Lycopersicon esculentum characterized by an untreated skin, which permits said dehydration of the fruit so as to obtain wrinkling of the skin, said dehydration being generally unaccompanied by microbial spoilage.

Thus, Article 58 EPC does not envisage a system of general exceptions to patentability that per se would allow or even necessitate a broad interpretation of any of the exclusions.

(b) 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.

This argument might apply particularly if the product was explicitly determined by the process, making the method features a required part of the claim defining the extent of protection conferred by the patent, as in the case of a product-by-process claim.