Enlarged Board of Appeal of the European Patent Office
|Issued November 25, 2008|
G 2/06 is a decision by the Enlarged Board of Appeal of the European Patent Office (EPO), which issued on 25 November 2008. In its answer to question 2, the Enlarged Board of Appeal ruled that "Rule 28(c) EPC (formerly [Rule 23d(c) EPC 1973]) 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." In short, a patent under the European Patent Convention (EPC) cannot be granted for an invention which necessarily involves the use and destruction of human embryos. The decision notably refers to the provisions of EU Directive 98/44/EC of 6 July 1998 on the legal protection of biotechnological inventions, referred to in Rule 26(1) EPC.
The reactions to the decision were mixed. According to Reuters, the decision could stifle research by stem cell companies for commercial purposes. In contrast, according to the Guardian, some experts believe this will provide a boost for European companies developing technologies based on human embryonic stem cells.
- No European patent for WARF/Thomson stem cell application, EPO web site, News, November 27, 2008. Consulted on November 28, 2008.
- Stephanie Bodoni, Wisconsin stem cell patent refused by European agency, Independent.ie, November 28, 2008. Consulted on November 28, 2008.
- UPDATE 1-European agency rules against stem cell patents, Reuters, November 27, 2008. Consulted on November 28, 2008.
- James Randerson, Europe rejects patent governing use of embryonic stem cells, guardian.co.uk, November 27, 2008. Consulted on November 28, 2008.
- Decision G 2/06, Official Journal EPO 5/2009, 306 (ECLI:EP:BA:2008:G000206.20081125)
- No European patent for WARF/Thomson stem cell application, EPO web site, News, 27 November 2008.
- European Patent Register entry for European patent application no. 0770125, entitled "Primate Embryonic Stem Cells", applied for by the Wisconsin Alumni Research Foundation, and which was the subject of the referral to the Enlarged Board of Appeal.