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Embryonic Stem Cell Method Denied Patent in EU Due to Embryo Destruction
No European patent for WARF/Thomson stem cell application
27 November 2008
The Enlarged Board of Appeal (EBoA) of the EPO has made a ruling in an appeal connected to the so-called WARF/Thomson stem cell application.
The ruling contains clarifications to questions posed by a Technical Board of Appeal dealing with the patentability of the WARF application. This application describes a method for obtaining embryonic stem cell cultures from primates, including humans, and was filed by the Wisconsin Alumni Research Foundation (WARF) in 1995.
No patent due to human embryo destruction
In 2006, the Technical Board competent for the case referred legal questions to the EBoA, in order to obtain clarity on a number of points.
Decisive in the EBoA ruling was the application's claim regarding human stem cell cultures. The EBoA decided that under the EPC it is not possible to grant a patent for an invention which necessarily involves the use and destruction of human embryos. The EBoA stressed, however, that its decision does not concern the general question of human stem cell patentability.
The EBoA based its ruling on relevant provisions of the European Patent Convention (EPC) and on the EU Biotechnology Directive (98/44/EC), which was implemented in the EPC in 1999.
The board also rejected the request for a preliminary ruling on the issue by the European Court of Justice, for lack of any legal and institutional link between the EPO appeal boards and the EU.
Ruling based on EPC and EU directive
The EPC does not allow patenting inventions whose commercial exploitation would be contrary to public order ("ordre public") or morality. Furthermore, the Convention prohibits patenting on uses of human embryos for industrial or commercial purposes.
The EBoA is responsible for ensuring uniform application of patent law. Like all other appeal boards, it is independent from the Office in its decisions and bound only by the EPC. Its rulings are legally binding for all instances at the EPO, including the Technical Board of Appeal competent in the WARF case.
Further information
Board of appeal decisions: text of decision G 2/06 PDF gratuito.
News of 17.6.2008: Enlarged BoA to review WARF stem cell case
Appeals: Decisions
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