Patenting Plants In Europe And The UK

Introduction and Executive Summary

Patent protection for plant-related inventions in Europe is available, but the legal framework contains specific exclusions that do not apply in some other major jurisdictions. While the European Patent Convention (EPC) excludes plant varieties, essentially biological breeding processes, and plants obtained exclusively through such processes, many innovations in modern plant biotechnology remain patentable.

For most applicants, success depends less on the underlying technology than on how the invention is claimed. Transgenic, gene-edited, cisgenic and other technically produced plants can often be protected, provided claims are drafted to avoid the exclusions in Article 53(b) EPC. Similarly, technical processes such as transformation, gene editing and molecular screening are generally patent-eligible, whereas claims that rely on conventional crossing and selection are not.

Even where product claims are unavailable, process claims can provide valuable protection. Under the EPC and the EU Biotechnology Directive, protection may extend beyond the first-generation plant produced by a patented process to later generations carrying the patented genetic information. Careful claim drafting is therefore critical to securing meaningful commercial protection.

Patent-eligibility is only one aspect of obtaining robust rights. Plant-related inventions must also satisfy the usual EPC requirements for novelty, inventive step, sufficiency and clarity, and applications should be drafted with European practice in mind to maximise flexibility during prosecution.

Applicants should also consider the practical scope of protection. Breeders’ exemptions in some European jurisdictions, together with farm-saved seed provisions and other sector-specific limitations, may affect enforcement strategies. Patents should therefore be considered alongside Plant Variety Rights (PVRs), which protect individual varieties and often complement broader patent protection for the underlying technology.

The regulatory environment is also evolving. The EU’s new Regulation on plants obtained by certain new genomic techniques (NGTs) establishes a lighter regulatory framework for many gene-edited plants while leaving the availability of patent protection unchanged. It also introduces new transparency measures relating to patents and licensing. Although the UK broadly follows the EPC approach to patentability, it is developing its own regulatory framework for precision-bred organisms, meaning that UK and EU regulatory requirements are likely to diverge over time.

Key practical points

• Many plant biotechnology inventions remain patentable in Europe despite the exclusions in Article 53(b) EPC.
• Careful claim drafting is essential to maximise protection and avoid patent-eligibility objections.
• Technical process claims can provide commercially significant protection, even where product claims are unavailable.
• Patents and Plant Variety Rights should be viewed as complementary components of an integrated IP strategy.
• The regulatory landscape for gene-edited plants is changing rapidly, making early alignment of patent and regulatory strategies increasingly important.

The above themes are explored in more detail in the following sections of this briefing.

Patenting plants under the EPC

Background

Article 53(b) EPC excludes from patentability:

• plant varieties; and
• essentially biological processes for producing plants.

Over the past 25 years, the scope of these exclusions has been shaped by a series of Enlarged Board of Appeal decisions.

In G1/98 (Novartis), the Enlarged Board confirmed that claims directed to plants above the level of a single variety are not excluded simply because they encompass individual varieties. As a result, many claims to plants remain patent-eligible if drafted at an appropriate taxonomic level,

In G2/07 and G1/08 (Broccoli/Tomatoes I), the Enlarged Board held that processes involving sexual crossing and selection are “essentially biological” and therefore excluded from patentability, even where technical steps are also present in the claim.

More recently, G3/19 (Pepper), together with Rule 28(2) EPC, confirmed that plants obtained exclusively by essentially biological processes are themselves also excluded from patentability¹.

These decisions now underpin EPO examination practice and are reflected in the EPO Guidelines. Although the overall framework is relatively settled, important questions remain regarding certain claim formats, the practical scope of protection, and the interaction between patent law, plant breeding and the rapidly evolving regulation of NGT plants.

This briefing focuses on the practical implications for applicants, explaining which claim types are currently available, how protection can be maximised, and where uncertainty remains.

Patent-ineligible claims

Although the EPC excludes plant varieties and essentially biological processes from patentability, the practical scope of these exclusions is narrower than is sometimes assumed. Nevertheless, they have an important impact on claim drafting.

Plant varieties

Article 53(b) EPC expressly excludes individual plant varieties from patentability. In practice, however, this is rarely a significant obstacle because applicants commonly seek broader patent protection, while individual varieties may instead be protected by Plant Variety Rights (PVRs).

Essentially biological breeding processes

More significant restrictions concern processes for producing plants.

Following G2/07 and G1/08, any process that includes the essential steps of sexually crossing plants and selecting progeny is generally regarded as an essentially biological process and is therefore excluded from patentability. This applies even where the claim also includes technical steps².

Although the Enlarged Board recognised a limited exception where a technical step introduces or modifies a genetic trait independently of the mixing of parental genes, this has limited practical application. As a result, claims that combine breeding with technical interventions are frequently objectionable⁴. For example, a process that begins with transformation or gene editing but subsequently relies on conventional breeding, or a process for introgressing a trait through successive crosses, will generally fall within the exclusion.

Plants obtained by breeding

Following G3/19 and Rule 28(2) EPC, plants obtained exclusively by essentially biological processes are themselves excluded from patentability.

This remains the case even where the plant is defined by a technical characteristic, such as the presence of a particular gene or trait. For example, a claim to a plant obtained by breeding does not become patentable simply because it possesses a beneficial genetic feature. The involvement of a technical step does not necessarily avoid the exclusion, particularly where that step merely assists an otherwise essentially biological process. However, a plant in which the relevant trait is introduced or modified by a technical intervention is not excluded from patentability under Rule 28(2) EPC.

Propagating material

The EPO generally applies the same principles to plant propagating material. Claims directed to seeds, pollen or other propagating tissues may therefore be excluded where the corresponding plant would itself be patent-ineligible.

In our experience, this approach can extend even to plant material that would require substantial technical intervention before a whole plant could be regenerated, such as pollen grains or somatic tissues.

Harvested products

Harvested or processed plant products are not excluded from patentability as a matter of principle. In practice, however, they often fail for other reasons.

Many plant inventions confer advantages during cultivation rather than in the harvested product itself. For example, fruit from a disease-resistant plant may be indistinguishable from conventional fruit, and flour produced from a drought-tolerant crop may have no detectable structural or compositional differences. Where the claimed product cannot be distinguished from known products, novelty or inventive step may be difficult to establish.

Practical implications

These exclusions mean that applicants should avoid claiming conventional breeding processes or plants defined solely by their production through such processes. Instead, protection should generally be directed towards technically produced plants, enabling technologies, or other patent-eligible subject matter discussed below.

Patent-eligible claims

Despite the exclusions in Article 53(b) EPC, many plant-related inventions remain patentable. The key is to claim the invention in a form that avoids the statutory exclusions while providing commercially meaningful protection.

Claims to plants

Following G1/98, claims directed to plants above the level of a single variety are generally patent-eligible. The invention must be defined in a way that extends beyond an individual variety rather than amounting to a collection of specific varieties.

In practice, this means that many technically produced plants can be protected. Examples include transgenic plants, cisgenic plants, gene-edited plants and technically produced mutants³. Even claims limited to a single species are generally allowable, provided they are not confined to one individual variety.

Technical processes

Processes involving biotechnology rather than conventional breeding are also patentable. Claims directed to transformation, gene editing, mutagenesis or other technical methods are routinely accepted because they do not fall within the exclusion for essentially biological processes.

The key limitation is that these claims cannot normally be extended by incorporating conventional crossing or selection steps. If breeding forms an essential part of the claimed process, the claim may become unallowable⁴. In practice, however, many inventions can be claimed entirely in terms of the technical intervention itself.

Screening and selection methods

Technical screening and selection methods are also patent-eligible. For example, methods for identifying the results of a cross using molecular markers, PCR or other analytical techniques may be allowable, provided the claimed method as a whole is novel and inventive, for example because of a new marker-trait association, marker combination or technically significant screening strategy. Similar principles apply to other technical processes, including plant tissue culture.

Scope of protection

Although process claims are often narrower than product claims, they can still provide valuable protection.

Under Article 64(2) EPC, protection extends to products directly obtained by a patented process. For plant inventions, this generally includes the first-generation plant produced by a claimed technical method.

In EU Member States implementing Article 8 of the EU Biotechnology Directive, protection for biological material obtained through a patented process may extend to material derived by propagation or multiplication in which the genetic information remains present and performs its function. As a result, a process claim directed solely to a technical step, such as transformation or gene editing, may provide commercially significant protection across later generations, even where a corresponding product claim is unavailable.

The position is less certain for screening and selection methods, where the resulting plants may not be regarded as products directly obtained by the claimed process.

Other patentable subject matter

The exclusion of essentially biological processes in Article 53(b) EPC is directed to processes for producing plants. Many other plant-related inventions therefore remain potentially patentable.

Examples include:

• genes, vectors, expression constructs and other biotechnology products
• agrochemicals
• agricultural machinery and practices⁵
• methods and processes for extracting useful products, e.g. food, from plants

In T1729/06, for example, the Board of Appeal held that the use of diploid watermelon plants as pollenisers for producing seedless fruit was patentable because no actual fertilisation and genome mixing occurred, and so the claimed invention was deemed to be for fruit production from sterile triploid plants, rather than the production of plants. The EPO’s Guidelines for Examination also call out the example of a seed coated with a beneficial chemical.

Strategic considerations

From a filing perspective, the best strategy is usually to pursue the broadest claim set available internationally and then tailor the European claims during EPO prosecution to reflect EPC requirements. This approach maximises flexibility across jurisdictions while preserving the strongest possible protection before the EPO. It also helps identify, at an early stage, whether an invention can ultimately support commercially useful claims in Europe or whether alternative forms of protection should be considered.

Other patentability requirements

Avoiding the Article 53(b) EPC exclusions is only the first step. Plant-related inventions must also satisfy the same substantive patentability requirements as inventions in any other technical field. In practice, however, certain issues arise more frequently in plant biotechnology.

Sufficiency of disclosure

Applications must enable the skilled person to carry out the invention. Where reproducibility depends on access to specific biological material, it may be necessary to deposit that material, typically seed, in accordance with the Budapest Treaty.

Novelty

Novelty can present particular challenges for cisgenic, gene-edited and mutant plants.

If a claimed genetic change already exists naturally or in another genetic background, the claim may lack novelty. In some cases, this can be overcome by defining additional technical features that distinguish the claimed plant, such as the use of a heterologous promoter or another feature that could not occur naturally.

Inventive step

Inventive step remains one of the most demanding aspects of EPO examination.

A recurring example is the so-called “event” case, where protection is sought for a transformation event at a particular genomic location that produces favourable expression. Although such inventions may be novel and sufficiently disclosed, the EPO often regards it as obvious to identify advantageous insertion sites through routine experimentation.

As in other technical fields, applicants should therefore focus on demonstrating an unexpected technical effect rather than relying solely on the discovery of a successful embodiment.

Clarity

Claims must define the invention clearly and precisely. Where the genetic basis of a trait has not been fully characterised, for example, where a mutation or disease-resistance gene has not been mapped, meeting this requirement can be difficult. Defining the invention using closely linked molecular markers or flanking sequences may provide sufficient precision.

Added matter

The EPO applies a particularly strict approach to amendments during prosecution.

This can create difficulties where applications have been drafted primarily with non-European practice in mind, particularly US practice. Amendments introduced to overcome Article 53(b) objections must have clear basis in the application as filed.

For this reason, it is often advantageous for the original specification to describe alternative technical means of introducing a trait, rather than focusing exclusively on conventional breeding or introgression. A broader initial disclosure can provide greater flexibility during European prosecution.

Disclaimer practice

Some plants can, at least in principle, be produced either by biotechnology or by conventional breeding. Gene-edited plants that recreate naturally occurring alleles are a common example. In these cases, the EPO generally requires a disclaimer excluding plants obtained exclusively by essentially biological processes.

The commercial significance of such a disclaimer depends on the facts. Where conventional breeding would be impractical, its impact may be limited. Conversely, where breeding provides a realistic alternative, competitors may be able to reproduce the same plant without infringing the patent, reducing the practical value of the claim.

Practical implications

For plant biotechnology inventions, obtaining robust European patent protection depends not only on choosing patent-eligible claim formats, but also on drafting applications with European practice in mind from the outset. Careful attention to biological deposits, support for future amendments, clear technical definitions and evidence of inventive contribution can significantly improve the prospects of obtaining commercially valuable protection.

Finally, it is worth noting that some older applications benefit from a more generous standard in some respects owing to a transitional provision in G3/19⁶.

Uncertain areas – possible opportunities

Although the EPO’s approach to Article 53(b) EPC is now largely settled, some claim formats remain untested or only lightly explored in the case law. These areas may offer opportunities to obtain broader protection, although applicants should expect objections and the legal position remains uncertain.

A common issue is whether a claim can rely on the novel and inventive characteristics of a plant while avoiding the exclusions that apply to plant varieties and essentially biological processes.

Potential claim formats include the following.

Uses of novel plants

One possibility is to claim the use of a novel and inventive plant in a technical process, such as producing food, feed or another plant-derived product, or in a non-breeding process such as tissue culture or propagation.

Such claims may derive patentability from the characteristics of the plant itself. However, whilst novelty may be straightforward, the EPO may take the view that the claimed use or process is conventional, making inventive step more difficult to establish. If allowed, Article 64(2) EPC could potentially extend protection to products directly obtained by the claimed process.

Plants combining conventional and technical traits

Another possibility is to claim plants that combine a novel and inventive conventionally bred trait with a separate technical feature, such as a transgene or gene edit. Likewise, it may be possible to claim technical processes applied to plants that are themselves novel and inventive because of conventionally bred characteristics. Whether these approaches successfully avoid the Article 53(b) exclusions remains uncertain.

Non-propagating plant material

It may also be possible to seek protection for non-propagating plant material such as leaves, isolated cells or other tissues, even where the corresponding whole plant would not itself be patent-eligible. If such claims were accepted, they could provide valuable protection because commercial activities involving the whole plant would inevitably involve the patented material.

Food and feed products

Claims directed to food or feed products that retain the distinguishing characteristics of a novel plant may also warrant consideration. Success is likely to depend on whether those characteristics remain identifiable in the final product and whether the product can satisfy the usual patentability requirements.

Breeding combinations 

Claims directed to combinations of technically produced parent plants present another possible avenue. For example, where the invention depends on two complementary transgenic or gene-edited parents, it may be preferable to claim the parents individually or together as a breeding pair rather than attempting to claim the progeny of a conventional cross, which is likely to fall within the Article 53(b) exclusion.

A balanced approach

These claim formats inevitably test the boundaries of current EPO practice, and some may ultimately be rejected as inconsistent with the principles established in G3/19.

Nevertheless, where commercially important protection is at stake, it may be worthwhile to include carefully drafted claims of this nature alongside more conventional claim sets.

In many cases, the downside is limited: unsuccessful claims can usually be deleted during prosecution, whereas an omitted claim may represent a lost opportunity if the law develops in a more favourable direction.

Commercial considerations: scope of protection and complementary rights

Securing a European patent is only part of the picture. The commercial value of protection will also depend on the scope of the resulting rights, available exemptions to infringement, and how patents fit alongside Plant Variety Rights (PVRs).

Breeders’ exemptions

Several European countries, including Germany, France, the Netherlands and Switzerland, provide a statutory breeders’ exemption. This allows patented plants to be used for breeding, and for the discovery and development of new plant varieties, without infringing the patent.

The UPC Agreement also includes a breeders’ exemption. As a result, unitary patents and European patents that remain within the UPC’s jurisdiction are subject to this limitation, even where the corresponding national law would not otherwise provide one. By contrast, UK patent law does not currently contain a breeders’ exemption.

These provisions do not affect whether a patent will be granted by the EPO, but they can significantly influence its commercial value and enforcement strategy. In some cases, applicants may therefore wish to consider whether to request unitary effect or instead validate nationally and, where appropriate, opt a European patent out of the UPC’s jurisdiction. That decision must be balanced against the increased cost and complexity of maintaining national rights, as well as the fact that breeders’ exemptions apply in several important jurisdictions irrespective of the chosen enforcement forum.

Patent protection is also subject to more general limitations. For example, experimental use is typically exempt from infringement, and both the EU Biotechnology Directive and implementing national legislation permit farmers, in certain circumstances, to save seed from specified crop species for use on their own holdings.

Patents and Plant Variety Rights (PVRs)

Patents and PVRs should generally be regarded as complementary rather than competing forms of protection.

A PVR protects a specific plant variety, whereas a patent can protect the underlying technical innovation, such as a transgene, gene edit or other trait, across multiple varieties and genetic backgrounds. Patents therefore often provide broader commercial protection where the invention has applications beyond a single variety.

The two rights also fit naturally at different stages of product development. Patent protection is commonly sought early, before commercial varieties have been established, whereas a PVR can generally only be obtained once suitable plant material is available for DUS (distinctness, uniformity and stability) testing.

Applicants should therefore consider patents and PVRs as part of an integrated IP strategy. In many cases, the strongest protection will be achieved by combining broad patent protection for the underlying technology with PVRs covering commercially important individual varieties.

A changing regulatory landscape for NGT plants in the EU

The regulatory environment for gene-edited plants in the EU has changed significantly with the adoption of Regulation (EU) 2026/1388 on plants obtained by certain new genomic techniques (NGTs).

For many developers, the most important consequence is that certain gene-edited plants will face a substantially lighter regulatory regime than conventional genetically modified organisms (GMOs). At the same time, the Regulation preserves the availability of patent protection while introducing new transparency requirements relating to patents and licensing.

A new approach to NGT plants

The Regulation applies to plants obtained by targeted mutagenesis or cisgenesis, including intragenesis, or by combinations of those techniques. These techniques include many applications of gene-editing systems such as CRISPR/Cas. It distinguishes between two categories of NGT plants

Category 1 (NGT1) plants, whose genetic changes could have arisen naturally or through conventional breeding; and

Category 2 (NGT2) plants, which contain more complex genetic modifications.

Following verification of their status, NGT1 plants will generally be regulated in the same way as conventionally bred plants rather than under the EU GMO framework. NGT2 plants, by contrast, will remain subject to GMO regulation, albeit with certain adaptations introduced by the Regulation.

This represents a significant policy shift. The existing EU GMO regime has long been regarded as burdensome, particularly for cultivation, and has limited the commercial deployment of genetically modified crops within the EU. The new framework is intended to reduce those barriers for many gene-edited plants while maintaining closer regulatory oversight of more extensive genetic modifications.

Patents remain available

Importantly, the Regulation does not exclude either NGT1 or NGT2 plants from patent protection.

Patentability will continue to be determined under the European Patent Convention. Accordingly, applicants who satisfy the EPC requirements, including the exclusions discussed earlier in this briefing, may still obtain patent protection irrespective of an NGT plant’s regulatory classification.

The Regulation therefore changes the route to market rather than the underlying law on patentability.

New transparency requirements

Although the Regulation leaves the substantive patent position unchanged, it introduces greater transparency around patents and licensing.

A public database recording decisions that a plant qualifies as an NGT1 plant will include information on relevant patents and published patent applications, so far as these are known to the applicant seeking NGT1 status.

Where the requester is also the patent holder, it must additionally declare its licensing intentions. The Regulation also provides for the publication of certain licensing information and establishes an expert group to assist the European Commission in monitoring the effects of patent protection and licensing practices in this sector.

These measures are intended to improve transparency without altering the scope or enforceability of patent rights.

Labelling and future review

NGT2 plants and products will continue to be subject to GMO-style traceability and labelling requirements.

By contrast, final products derived from NGT1 plants will generally not require GMO-style labelling. However, NGT1 plant reproductive material supplied to third parties must be labelled as such and accompanied by the relevant identification number.

The Regulation entered into force on 16 July 2026. Most of its substantive provisions will apply from 17 July 2028, although certain provisions concerning intellectual-property guidance, licensing and monitoring already apply.

The Commission must also review the operation of the new framework, including the effects of patent protection and licensing on access to NGT technologies. As a result, the interaction between regulation and intellectual property is likely to remain an area of active policy development over the coming years.

Practical implications

For innovators, the combination of a lighter regulatory pathway for many gene-edited plants and the continued availability of patent protection is likely to strengthen the commercial attractiveness of NGT technologies in Europe.

At the same time, the new transparency and monitoring requirements mean that patenting and licensing strategies are likely to come under greater public and regulatory scrutiny. Businesses developing NGT products should therefore consider their regulatory and IP strategies together from an early stage.

Patenting plants in the UK

Although the UK is no longer a member of the EU, it remains a contracting state to the European Patent Convention. As a result, the principles governing the patentability of plants are largely the same as those applied by the EPO.

In practice, most UK patents for plant-related inventions are obtained via the EPO rather than through the UK Intellectual Property Office (UK IPO). We expect the UK IPO to take a broadly consistent approach to the interpretation of Article 53(b) EPC and related case law.

The principal differences between the UK and parts of continental Europe lie outside patentability itself.

Most notably, UK patent law does not currently include a statutory breeders’ exemption. This may offer broader protection than is available in some European jurisdictions, where patented plants may be used for breeding without infringing the patent.

The UK has also developed its own regulatory framework for certain genetically altered organisms. In England, the Genetic Technology (Precision Breeding) Act 2023 establishes a separate regime for “precision bred organisms”. Although this framework shares the objective of facilitating the development of certain gene-edited plants, it differs from the EU NGT Regulation in its scope, terminology and regulatory requirements.

Implementation of the English regime remains uncertain following the High Court’s decision in R (Beyond GM and others) v Secretary of State for Environment, Food and Rural Affairs [2026] EWHC 1306 (Admin). The High Court held that the decision-making process was unlawful because the minister had misunderstood the scope of his powers. At the time of writing, the appropriate remedy had not been determined.

As the UK is no longer required to follow EU legislative developments in this area, the two regulatory regimes are likely to continue evolving independently. Businesses operating in both markets should therefore consider UK and EU regulatory requirements separately, even where the underlying patent strategy remains broadly aligned.

Conclusions and key takeaways

• Many plant-related inventions remain patentable in Europe. Although plant varieties, essentially biological breeding processes and plants obtained exclusively by such processes are excluded, a wide range of biotechnological inventions, including transgenic, gene-edited and technically produced plants, can still be protected.
• Claim drafting is critical. The availability and commercial value of patent protection often depend more on how an invention is claimed than on the underlying technology itself. Careful drafting can frequently avoid the exclusions in Article 53(b) EPC while preserving meaningful protection.
• Process claims can provide substantial protection. Even where product claims are unavailable, technical process claims may extend to plants produced by the process and, in many cases, to subsequent generations carrying the patented genetic information.
• European filing strategy requires early planning. Biological deposits, support for future amendments and careful consideration of European practice during drafting can significantly improve the prospects of obtaining robust protection.
• Patents should be considered alongside Plant Variety Rights. The two systems serve different purposes and will often provide the strongest protection when used together as part of an integrated IP strategy
• The regulatory landscape continues to evolve. The EU’s new framework for NGT plants reduces regulatory barriers for many gene-edited plants while preserving patent protection, and the UK is developing its own distinct regime. Businesses should therefore review regulatory and intellectual property strategies together when bringing new plant technologies to market.

Footnotes

1 Reversing G2/12 and G2/13 (Broccoli/Tomatoes II, 2015), in which such plants were held patent-eligible. Under pressure from the EU, Rule 28(2) EPC was introduced in 2017 with a view to overriding these decisions, which were unpopular with breeders and legislators in a number of EPC member states. Rule 28(2) EPC was initially held by an EPO Technical Board of Appeal (TBA) to conflict with Article 53(b) EPC (as interpreted by G2/12 and G2/13) and hence not to be followed, but G3/19 confirmed the rule’s validity. For further discussion, see our commentary from the time.

2 The Broccoli/Tomatoes I decisions do offer a derogation such that: “if a process contains within the steps of sexually crossing and selecting an additional step of a technical nature, which step by itself introduces a trait into the genome or modifies a trait in the genome of the plant produced, so that the introduction or modification of that trait is not the result of the mixing of the genes of the plants chosen for sexual crossing, then the process is not excluded from patentability …”. However, we are in practice not aware of any cases where this has been relied on successfully.

3 The aim of G1/98 was not to draw a distinction between plants obtained by breeding and those obtained by biotechnology, but between claims to individual varieties and those written more generically.

4 This is because G2/07 and G1/08 prohibit claims that contain “disguised” crossing steps. In our experience, this is not particularly consistently enforced, but some inventions do provoke an objection of this type.

5 For example, if a particular spacing of apple trees in an orchard were surprisingly shown to give an optimal yield, a process reciting planting the trees to achieve this would probably be patent-eligible.

6 In G3/19, the Enlarged Board held that the exclusion under Rule 28(2) EPC does not apply to European patents granted before 1 July 2017 or to pending European patent applications with a filing date and/or priority date before 1 July 2017. For these cases, the decisive case law is G2/12 and G2/13, under which the products of essentially biological processes were patent-eligible (even though essentially biological processes for the production of plants are not patentable owing to Article 53(b) EPC). This meant that a “conventionally” bred plant could in principle be claimed as long as all other requirements were met. In practice, this was always difficult, in particular because although it may be possible to define a trait at a high enough level of generality to avoid Article 53(b) EPC and G1/98, it tended to be difficult to define it precisely enough to meet the requirement for clarity under Article 84 EPC. A few applications were granted on this basis (see Board of Appeal decisions T1370/19 (positive on clarity) and T1988/12 (negative on clarity)). Some remain pending or under opposition/appeal.

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