- This is an opposition case. The OD had issued the decision 19.12.2013 finding the method of claim 1 unallowable as it involved stem cells derived from human embryonic stem cells.
- The CJEU decided on 18.12.2014 that "unfertilised human ovum whose division and further development have been stimulated by parthenogenesis does not constitute a 'human embryo'" (ECLI:EU:C:2014:2451).
- The Board: "In view of this ruling and the fact that a protocol to derive human parthenogenetic embryonic stem cells from parthenotes (activated oocytes) was made available by [WO 2003/046141] on 5 June 2003, the European Patent Office now considers that an objection under Article 53(a) EPC and Rule 28(1)(c) EPC [] cannot be raised in respect of an application pertaining to human pluripotent stem cells, [] if (i) the application has an effective date[] on or after 5 June 2003, and (ii) its technical teaching can be put into practice using human embryonic stem cells derived from parthenogenetically activated human oocytes."
- "The board sees no reason, in the context of the present case, to question [this] revised interpretation [by the EPO].
- "Consequently, the method of claim 1 cannot be regarded as excluded from patentability under Article 53(a) EPC."
- As a comment: the "revised interpretation" appears to never have been published by the EPO. See e.g. T2365/13. I add that in T2365/13 actually had remitted the examination appeal without any substantive findings.
- As a comment, the present Board appears to adopt the substantive position that activated oocytes are not "human embryos" in the sense of Rule 28 EPC without any examination of the technical merits of that position (I note that the opponent made no submissions on Rule 28). A question is whether the Board has a duty to consider the technical merits of the CJEU's position that oocytes are not "human embryos" in view of the reference to the EU Biotech directive in Rule 26(1) EPC, laid down by the Administrative Council, and the Board's task and independent responsibility under the EPC.
EPO T 0385/14 link
Reasons for the Decision
Main request (claims as granted) - Articles 100(a) and 53(a) EPC and Rule 28(1)(c) EPC
1. In the decision under appeal, the opposition division, referring to decision G 2/06 of the Enlarged Board of Appeal (OJ EPO 2009, 306) and the Guidelines for Examination in the EPO, Part G, Chapter II-32.5.3(iii), found that the method of claim 1, as far as it involved the use of in vitro differentiated cardiomyocytes that were derived from a human embryonic stem cells, was excluded from patentability under Article 53(a) and Rule 28(c) EPC, because at the effective date such cells could be prepared exclusively by a method which necessarily involved the destruction of human embryos.
