G 0002/06 (Use of embryos/WARF) of 25.11.2008
- European Case Law Identifier
- ECLI:EP:BA:2008:G000206.20081125
- Date of decision
- 25 November 2008
- Case number
- G 0002/06
- Petition for review of
- T 1374/04 2006-04-07
- Application number
- 96903521.1
- IPC class
- C12N 5/00
- Language of proceedings
- English
- Distribution
- Published in the EPO's Official Journal (A)
- Download
- Decision in English
- Other decisions for this case
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- Abstracts for this decision
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- Application title
- Primate Embryonic Stem Cells
- Applicant name
- WISCONSIN ALUMNI RESEARCH FOUNDATION
- Opponent name
- -
- Board
- -
- Headnote
1. The request for a preliminary ruling by the European Court of Justice on the questions suggested is rejected as inadmissible.
2. The questions referred to the Enlarged Board of Appeal are answered as follows:
Question 1: Rule 28(c) EPC (formerly Rule 23d(c) EPC) applies to all pending applications, including those filed before the entry into force of the rule.
Question 2: Rule 28(c) EPC (formerly Rule 23d(c) EPC) forbids the patenting of claims directed to products 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, even if the said method is not part of the claims.
Question 3: No answer is required since Questions 1 and 2 have been answered with yes.
Question 4: In the context of the answer to question 2 it is not 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.
- Relevant legal provisions
- ECJ Case C-337/95European Patent Convention Art 112(1)(a) 1973European Patent Convention Art 164(2) 1973European Patent Convention Art 23(3) 1973European Patent Convention Art 53(a)European Patent Convention Art 53(a) 1973European Patent Convention R 23b 1973European Patent Convention R 23b(1) 1973European Patent Convention R 23d 1973European Patent Convention R 23d(c) 1973European Patent Convention R 23e 1973European Patent Convention R 26European Patent Convention R 26(1)European Patent Convention R 28European Patent Convention R 28(c)European Patent Convention R 29German Bundespatentgericht decision 3 Ni 42/04 of 5 December 2006
- Keywords
- Admissibility of referral (yes)
Referral for preliminary ruling by European Court of justice (no) - request not admissible, as no power to make such referral under EPC
Rule 28(c) (formerly 23d(c)) EPC applicable to pending applications filed before it came into force (yes)
Rule 28(c) (formerly 23d(c)) EPC intra vires Article 53(a) EPC and in conformity with TRIPS Article 27 (yes)
Exception to patentability of Rule 28(c) (formerly 23d(c)) EPC applicable where claimed product could be prepared exclusively by method necessarily involving the destruction of embryos even if method is not explicitly part of claims (yes)
In assessing the exception to patentability of Rule 28(c) (formerly 23d(c)) EPC technical developments after date of filing not of relevance - Catchword
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ORDER
For these reasons it is decided that:
1. The request for a preliminary ruling by the European Court of Justice on the questions suggested is rejected as inadmissible.
2. The questions referred to the Enlarged Board of Appeal are answered as follows:
Question 1: Rule 28(c) EPC (formerly Rule 23d(c) EPC) applies to all pending applications, including those filed before the entry into force of the rule.
Question 2: Rule 28(c) EPC (formerly Rule 23d(c) EPC) forbids the patenting of claims directed to products 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, even if the said method is not part of the claims.
Question 3: No answer is required since Questions 1 and 2 have been answered with yes.
Question 4: In the context of the answer to question 2 it is not 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.