The following questions are referred to the Enlarged Board of
Appeal for decision:
1. Does a non-microbiological process for the production of
plants consisting of steps of crossing and selecting plants fall
under the exclusion of Article 53(b) EPC only if these steps
reflect and correspond to phenomena which could occur in nature
without human intervention?
2. If question 1 is answered in the negative, does a
non-microbiological process for the production of plants
consisting of steps of crossing and selecting plants escape the
exclusion of Article 53(b) EPC merely because it contains, as
part of any of the steps of crossing and selection, an additional
feature of a technical nature?
3. If question 2 is answered in the negative, what are the
relevant criteria for distinguishing non-microbiological plant
production processes excluded from patent protection under
Article 53(b) EPC from non-excluded ones? In particular, is it
relevant where the essence of the claimed invention lies and/or
whether the additional feature of a technical nature contributes
something to the claimed invention beyond a trivial level?
