T 2365/13 (Human pluripotent progenitor stem cells /PROGENITOR LABS) of 31.5.2016

European Case Law Identifier: ECLI:EP:BA:2016:T236513.20160531
Date of decision: 31 May 2016
Case number: T 2365/13
Application number: 06808713.9
IPC class: C12N 15/06
G01N 33/50
Language of proceedings: EN
Distribution: D
Download and more information:
Decision text in EN (PDF, 242.990K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: Unpublished
Title of application: METHOD FOR IDENTIFYING A MODULATOR OF A CELL SIGNALLING
Applicant name: Progenitor Labs Limited
Opponent name: -
Board: 3.3.08
Headnote: -
Relevant legal provisions:
European Patent Convention Art 53(a)
European Patent Convention Art 111(1)
European Patent Convention R 28(c)
Keywords: Main Request - remittal to the first instance for further prosecution
Catchwords:

-

Cited decisions:
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Citing decisions:
-

Summary of Facts and Submissions

I. European patent application no. 06 808 713.9, published as International patent application WO 2007/063316, was refused by the examining division. Basis for the refusal were a Main Request and Auxiliary Requests 1 and 2, all filed on 4 May 2012. The examining division considered the Main Request and Auxiliary Request 1 to contravene Article 53(a) EPC and Rule 28(c) EPC, and Auxiliary Request 2 not to meet the requirements of Articles 84, 83 and 56 EPC.

II. The applicant (appellant) lodged an appeal against the decision of the examining division. With the statement setting out the Grounds of Appeal, the appellant filed a new Main Request and new Auxiliary Requests 1 and 2 and requested that the decision under appeal be set aside and a patent be granted on the basis of one of these new requests. Oral proceedings were requested as an auxiliary measure.

III. The board issued a communication pursuant to Article 17(2) of the Rules of Procedure of the Boards of Appeal (RPBA).

IV. In reply to the board's communication, the appellant withdrew its request for oral proceedings and requested that the decision under appeal be set aside and the case be remitted to the examining division for further prosecution on the basis of the Main Request filed with the statement setting out the Grounds of Appeal.

Reasons for the Decision

1. In its communication (cf. point III supra), the board informed the appellant that it had become aware that the department of first instance, in view of the CJEU judgement C-364/13, has reconsidered its practice with regard to the patentability of inventions referring to human pluripotent stem cells ("progenitor cells" in the present case).

2. The board drew the appellant's attention to the communication of the examining division issued on 9 March 2016 concerning European patent application no. 13 186 524.8, related to human pluripotent stem cells. This communication refers to document WO 2003/046141, publication date 5 June 2003 (one and a half years before the priority date of the present application), as the earliest publication of an enabling disclosure of human parthenogenetically derived pluripotent stem cells, which according to CJEU judgement C-364/13 does not involve the use of human embryos.

3. In the light of these facts, the appellant was informed that the board intended to set aside the decision under appeal and to remit the case to the examining division for further prosecution on the basis of the Main Request.

4. The appellant withdrew its request for oral proceedings and agreed with the course of action proposed by the board (cf. point IV supra).

5. Therefore, according to Article 111(1) EPC, the case is remitted to the examining division for further prosecution on the basis of the Main Request.

Order

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The case is remitted to the examining division for further prosecution on the basis of the Main Request filed on 4 November 2013 with the statement setting out the Grounds of Appeal.

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