T 2365/13 - Stem cells

Key points

• The Board follows the decision of the CJEU in judgement C-364/13 (International Stem Cell Corporation) and confirms EPO practice that 5 June 2003 is the critical date for applications involving human pluripotent stem cells.

T 2365/13 - link

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.