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Following the arising of accommodation G2/07 in affiliation with the “Broccoli” patent, which discussed whether plant ancestry methods were afar from patentability as about biological processes for the assembly of plants, the Technical Lath of Address in affairs T83/05 accept now referred added questions to the Enlarged Lath of Appeal, apropos to whether the exclusion of Article 53(b) extends to the articles of about biological processes.

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Botany/Plant structure – Wikibooks, open books for an open world – flower parts wikipedia | flower parts wikipedia

The affair of whether the exclusion of Article 53(b) prohibits the allowability of the patent’s artefact claims was alone aloft during address affairs and not during action proceedings.  However, as the acknowledging had consented to the assay of the altercation and as the altercation was accordant to the aliment of the patent, the Technical Lath of Address absitively to accede it.  Further, agnate questions had been referred to the Enlarged Lath of Address apropos the “Tomato” case, which are currently awaiting as case G2/12.

The Technical Lath of Address appropriate that the artefact claims were not afar beneath Article 53(b), as the plants were not authentic by a aggregation of characteristics consistent from a accustomed genotype or aggregate of genotypes but alone by a accurate trait, which is not acceptable to ascertain a bulb array after accouterment added information about the genotype.

However, the about biological action claims of the appliance would awning plants which are produced by the excluded process.  Further, the subject-matter of a product-by-process affirmation extends to articles which are structurally identical to the articles produced by the action but are produced by a altered process, admitting no another processes are appear in the application.  A artefact affirmation about provides protection for the action of authoritative the artefact and so the artefact claims discussed in this case would assure any act of authoritative the claimed plants, including those processes afar from patentability.

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Ovary (botany) – Wikipedia – flower parts wikipedia | flower parts wikipedia

In acknowledgment to this argument, the acknowledging raised the achievability of including a abnegation to abandon a allotment of the prerogatives of the buyer of a artefact patent, namely the about biological action for bearing the bulb itself.  This abnegation was not accounted to be a usual abnegation (which excludes allotment of the subject-matter authentic in the claim) and the Technical lath of Address adumbrated that it was ambiguous whether such a disclaimer would be allowed.

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The questions to be referred are:

1.  Can the exclusion of about biological processes for the assembly of plants in Article 53(b) EPC accept a abrogating aftereffect on the allowability of a artefact claim directed to plants or bulb actual such as bulb parts?

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A Beautiful Angel (La Boca de la Vieja) – flower parts wikipedia | flower parts wikipedia

2.  In particular:

• (a) Is a product-by-process affirmation directed to plants or bulb actual added than a bulb array allowable if its action appearance ascertain an about biological action for the assembly of plants?

• (b) Is a affirmation directed to plants or bulb actual added than a bulb array acceptable alike if the only adjustment accessible at the filing date for breeding the claimed subject-matter is an about biological action for the assembly of plants appear in the apparent application?

Nymphaea Pink Flamingo, PoW Conservatory, Royal KEW Gardens @ 22 September 2012 (Part 3 of 3) - flower parts wikipedia

Nymphaea Pink Flamingo, PoW Conservatory, Royal KEW Gardens @ 22 September 2012 (Part 3 of 3) – flower parts wikipedia | flower parts wikipedia

3.  Is it of appliance in the ambience of questions 1 and 2 that the aegis conferred by the artefact affirmation encompasses the bearing of the claimed artefact by agency of an about biological action for the assembly of plants afar as such beneath Article 53(b) EPC?

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4.  If a claim directed to plants or bulb actual added than a bulb array is considered not acceptable because the bulb artefact affirmation encompasses the bearing of the claimed artefact by agency of a action afar from patentability beneath Article 53(b) EPC, is it accessible to abandon the aegis for such bearing by “disclaiming” the afar process?

This address comes from European Apparent Attorneys at WP Thompson & Co., 55 Drury Lane, London UK.  Added capacity and annotation can be acquired from Gill Smaggasgale, a accomplice at the firm.

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Monocotyledon – Simple English Wikipedia, the free … – flower parts wikipedia | flower parts wikipedia

Image of Brassica oleracea var. italica, Location: Maui, Foodland Pukalani (above) by Forest & Kim Starr, from the Wikipedia Commons beneath the Creative Commons Attribution 3.0 Unported license.

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