Following the decision of the Enlarged Board of Appeal (EBA) in G 2/12 (Tomatoes II/State of Israel) that “… Article 53(b) EPC does not have a negative effect on the allowability of a product claim directed to plants or plant material…”, as reported in our article last year, the appeal that led to this referral to the EBA has been decided. In the decision, T 1242/06 (Tomatoes II/State of Israel), the Technical Board of Appeal (TBA) concluded that the subject matter of the claims of auxiliary request I was not excluded under Art 53(b).

The TBA decided to remit the decision to the Opposition Division with the order to maintain the patent, EP1211926, on the basis of auxiliary request I, claim 1 of which is reproduced below.

1. A tomato fruit of the species Lycopersicon esculentum which is naturally dehydrated, wherein natural dehydration is defined as wrinkling of skin of the tomato fruit when the fruit is allowed to remain on the plant after a normal ripe harvest stage, said natural dehydration being generally unaccompanied by microbial spoilage.