BIE special 2017, p. 17-20, Bart Kiewiet "By virtue of article 1 of Council Regulation (EC) 2100/94 (“the Basic Regulation”) a system of Community plant variety rights has been established “as the sole and exclusive form of Community industrial property rights for plant varieties”. This provision finds it pendant in article 4 (1(a) of the so-called Biotech Directive2: “The following shall not be patentable: (a) plant …varieties;”. The European Patent Convention contains a similar provision in article 53 (b). [...]
The reason to ask, and try to answer, the question, that forms the title of this article, is, that the European Patent Off ice (EPO) until now did not take up an unequivocal position on the issue, whether hybrids are covered by the definition of plant variety. In its decision T788/07 of 7 January 2008, the Technical Board of Appeal of the EPO (BoA) concluded that “Hybrid seeds or plants thereof … are not considered as units with regard to their “suitability for being propagated unchanged”…. and are therefore not regarded as plant varieties which are excluded from patentability (Article 53(b) EPC).” The consequence of this opinion of the BoA is, that hybrids can be protected with a patent (and would be excluded from protection with a Community plant variety right)."
