Rule 28(c) EPC states, "under Article 53(a), European patents shall not be granted in respect of biotechnological inventions which, in particular, concern [...] uses of human embryos for industrial or commercial purposes".
Friday, 28 November 2008
The EPO Enlarged Board of Appeal has now decided (in G 2/06) that this forbids patenting of claims directed to products which, at the filing date, could only be prepared by a method that necessarily involved destruction of human embryos from which the products were derived, even if this method was not part of the claims. It was not relevant whether, after the filing date, the same products could be obtained by other means that did not involve the destruction of human embryos.
The Board also decided that it did not matter whether the patent application was made before the entry into force of Rule 28 (previously Rule 23d EPC 1973), because there were no transitional arrangements made when the rule was introduced, following the EC Biotechnology Directive.
As announced by the EPO, this decision means that the patent applicant, the Wisconsin Alumni Research Foundation (WARF), will not be able to obtain European patent protection for their invention (dating back to 1998) relating to a process for obtaining stem cells from human embryos.