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EPO hearing on stem cells next week

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

The IPKat has been informed, thanks to le blog du droit européen des brevets as well as a recent announcement on the EPO website, that oral proceedings, which will be open to the public, are due to be held on 24-25 June at the EPO in Munich on the Enlarged Board of Appeal case G 2/06. This relates to case T 1374/04, in which the following questions were referred to the enlarged board relating to exceptions to patentability under Rule 28 EPC.

"1. Does [Rule 28(c)] EPC apply to an application filed before the entry into force of the rule?

2. If the answer to question 1 is yes, does [Rule 28(c)] EPC forbid the patenting of claims directed to products (here: human embryonic stem cell cultures) which - as described in the application ? at the filing date could be prepared exclusively by a method which necessarily involved the destruction of the human embryos from which the said products are derived, if the said method is not part of the claims?

3. If the answer to question 1 or 2 is no, does Article 53(a) EPC forbid patenting such claims?

4. In the context of questions 2 and 3, is it of relevance that after the filing date the same products could be obtained without having to recur to a method necessarily involving the destruction of human embryos (here: eg derivation from available human embryonic cell lines)?"

The application in question, filed by the Wisconsin Alumni Research Foundation, relates to a process for preparing primate embryonic stem cells, and describes methods by which stem cells derived from a primate embryo can be maintained in vitro for a long period of time without losing their potential to differentiate into any cell of the body.

An EPO Examining Division had previously refused the application on the grounds that the method used primate (including human) embryos as the starting material, and these were destroyed in the process. The Examining Division's view was this was contrary to Rule 28 (or Rule 23a as it then was), as well as the EC Biotech Directive 98/44.

The Enlarged Board then invited comments from the EPO President, as well as the public, and has received an enormous amount of material (all of which is accessible via epoline), including a short (and fairly uninformative) letter from the President. The Board will be hearing the President and the applicant at the hearing, but will unsurprisingly not be making its decision immediately.

The IPKat, who does not work in the biotech patenting field, is very wary about commenting further on this case, but is fairly confident that there will be plenty of heat and not much light coming from many of the amicus curiae in this case, given the controversial nature of the subject matter. It may therefore be worth showing up just to see the sideshow, if you're into that kind of thing. Failing that, it's always worth turning up to see Alison Brimelow in action.

Full post as published by IPKat on June 19, 2008 (boomark / email).