At oral proceedings, which took place on 5 December 2018, Technical Board of Appeal 3304  held that Rule 28(2) EPC -excluding plant products produced by essentially biological processes from patentability- is in conflict with Article 53(b) EPC as interpreted by the Enlarged Board of Appeal in decisions G 2/12 and G 2/13.

The Board referred to Article 164(2) EPC, according to which the provisions of the Convention prevail in case of conflict with the Implementing Regulations -thus rendering Rule 28(2) void- and decided to set the decision under appeal aside and to remit the case to the examining division for further prosecution.

The written decision is not yet available.
The EPO response to the decision can be read here.