The Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has at last delivered its decision regarding the WARF stem cells patent application which was applied for late last year. The Technical Board of Appeal (TBA) had referred questions to the EBA concerning whether European patents could be granted for inventions involving methods that require the destruction of human embryos.
As per Rule 28(c) EPC 2000, excluded from patentability are uses (i.e. methods) of human embryos for industrial or commercial purposes.
The question for the EBA was whether this general exclusion prohibits the patenting of claims directed to products (human embryonic stem cell cultures in the WARF application) which could be prepared by a method that necessarily involved the destruction of human embryos, even if the method was not actually part of the claims.
The EBA ruled that such claims are forbidden by Rule 28 (c). The EBA stated that if they were to allow this patent, that would have been the “undesirable consequence” of clever claim drafting. The EBA considered that making the claimed products involved the destruction of human embryos, though not in the claim itself, was an integral and essential part of the industrial or commercial exploitation of the claimed invention.
In the UK, patents will be granted for ‘pluripotent human embryonic stem cells’ (i.e. those that do not have the potential to develop into an entire human body) provided they satisfy the normal requirements for patentability. However, a further practice note on patenting stem cell inventions is likely to be issued in the UK soon in light of the EBA’s decision.