11 April 2013
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An opposition division of the EPO has decided to revoke the European patent in the so-called "Brüstle" case in public oral proceedings held today.
European patent 1040185 B1 titled "Neural precursor cells, methods for their production as well as their use in neural defect therapy" was granted to the German scientist Professor Oliver Brüstle on 22 February 2006. It is related to /describes the use of such cells for medical purposes, in particular for the treatment of severe neural deficiencies such as Parkinson's, Huntington's and Alzheimer's. Among other aspects the patent describes how the neural precursor cells are obtained from human embryonic stem cells. In November 2006, the US company Geron Corporation filed an opposition against the grant, requesting the revocation of the patent.
After considering the arguments of both sides in the opposition procedure, the opposition division competent in the case ruled that the patent as granted needs to be revoked on the ground that it covers subject-matter not disclosed in the original patent application, which is not allowable under the applicable European Patent Convention (EPC). The decision of the Opposition Division can be appealed before the Boards of Appeal, the EPO's second instance.
As any other technology, biotechnological inventions, including those relating to human embryonic stem cells, may in principle be patentable, under the applicable law, which is the European Patent Convention (EPC), provided they are novel, involve an inventive step, can be applied in industry and do not fall under one of the exceptions to patentability under the EPC. The relevant case-law of the EPO's Boards of Appeal, in particular decision G2/06 of the Enlarged Board of Appeal of the EPO, gives specific guidance on the interpretation of the exceptions to patentability under the EPC in the context of stem cell technology.
The proceedings in the present case concerning the European patent are independent from those relating to Professor Brüstle's parallel German patent. The latter was maintained in amended form by the German Bundesgerichtshof in November 2012.