EPO Appeals Board Upholds Ruling Limiting Stem Cell Patentability

A European Patent Office (EPO) Boards of Appeal this week handed down a verdict in the area of stem cell patenting that could provide further guidance on what is patentable under the European Patent Convention (EPC) when it comes to biotechnology.

On 4 February, one of the Technical Boards of the EPO specialising in biotechnology cases published case law in a stem cell case that “confirms the approach taken by the EPO’s patent examiners regarding the patentability in human embryonic stem cells,” EPO spokesman Rainer Osterwalder told Intellectual Property Watch.

In this case, the Examining Division of the EPO rejected an appeal by Technion Research and Development Foundation, Ltd., based in Haifa, Israel, which attempted to patent an “invention” of human foreskin cells suitable for culturing stem cells.

The board said in its decision: “Inventions which make use of publicly available human embryonic stem cell lines which were initially derived by a process resulting in the destruction of the human embryos are excluded from the patentability” under the EPC.

Osterwalder pointed out that the ruling also states that “although judgments of the European Court of Justice are not legally binding on the EPO or on it boards of appeal, they should be considered as being persuasive.” In 2011, the European Court of Justice (ECJ) ruled that no patents may be issued on stem cell research if human embryos have been destroyed in the process.

The Board observed that its decision in the case “is in line with decision C-34/10 of the ECJ” (point 44).