Stem Cells, Patents and Public Policy: Ruling of EBoA on WARF/Thomson application

The European Patent Office's Enlarged Board of Appeal (EPoA) ruled on November 25th 2008 that it is impossible to grant patent protection to a certain stem cell application for reasons of public policy.

Back in 1995 the Wisconsin Alumni Research Foundation (WARF) filed an application with the EPO for a patent for a method for obtaining embryonic stem cell cultures from primates, including humans.

On July 13th 2004, an EPO Examining Division refused to grant a patent for the application on the grounds that it was found to be incompatible with the European Patent Convention (EPC). A principal reason for the refusal was that the method of obtaining stem cells used as the starting material a primate (including human) embryo which was destroyed in the process.

Then, in 2005 the Technical Board of Appeal competent in the case referred a number of points of law to the EPO's supreme judicial body, the Enlarged Board of Appeal, which is in charge of ensuring uniform application of the patent law.

The EBoA decided that patent protection could not be given to such a method because it necessarily involves the use and destruction of human embryos. The EBoA held that a patent could not be granted to protect an invention the commercial exploitation of which is contrary to public policy or public morality. It also held that the EPC prohibits patenting on uses of human embryos for industrial or commercial purposes. By the same token, the EPoA held that the provisions Directive 98/44/EC on the legal protection of Biotechnological inventions also provides that patents shall not be granted for inventions concerning uses of human embryos for industrial or commercial purposes. The EBoA must apply Directive 98/44/EC as it forms part of the EPC since 1999 and is applied by the EPO.

The ruling of the EPoA seems a narrow one. It made no determination of the patentability of claims based on any of the traditional criteria used to assess patentability – usefulness, novelty and non-obviousness. It makes clear that its decision does not address the question of patentability in general of inventions relating to human stem cell cultures.

The issue came up as to whether the EPoA should and could refer a question to the Court of Justice under Article 234 EC. It ruled that it could not do so as no legal and institutional links existed between it and the Court of Justice. Consequently, it was most unlikely that the Court of Justice would consider that the EBoA was a court or tribunal of a member State of the EU. It thus distinguished its situation from that of the Benelux Court which was in issue in Case C-337/95 Dior v. Evora, paragraph 31.

Comments

[generic viagra]

Excellent article! It’s just what i needed to understand. Have a nice day!!

[laineyblak]

comment report cause 2009 stance different

[new louis vuitton belt]

legal and institutional links existed between it and the Court of Justice. Consequently

[nike air max shoes 90]

the whole story revolving around

authorities in Kronoberg it would be inappropriate that this horrible and shameful account should be drawn to the

attention of the Public in all of the EU member states, and especially embarrassing for The

[cheap designer handbags]

I can't believe how much of this I just wasn't aware of. Thank you for bringing more information to this topic for me. I'm truly grateful and really impressed. http://www.taobao-trade.com.

[jes4]

I am grateful for you discussing that in the internet page.

[Nike Griffey Shoes]

Thank your for sharing your wonderful article. I very agree with your views from here.

[バーバリー]

常駐する海兵隊員の規模は不明。基地は新設せず、ダーウィン近郊にある約４５００人収容の施設を利用するが、余剰スペースが約２００人分しかないため増築される。同紙では、日本の安全保障問題に詳しいマイケル?グリーン氏は「（海兵隊は）人口過密な沖縄では難しいヘリコプターや航空機からの降下や射撃訓練が可能な場所を求めている」と話している。

[ティンバーランド]

このティンバーランド通販店のブーツはデザインもよれば色も良いです。そして、ブーツは大人用のもなれば子供用のもあります。

[Cheap oem software]

m7keQf Thank you very much! I took it for myself too. Will be useful!!....