G 0002/06 (Use of embryos/WARF) of 25.11.2008

European Case Law Identifier: ECLI:EP:BA:2008:G000206.20081125
Date of decision: 25 November 2008
Case number: G 0002/06
Referral: T 1374/04
Application number: 96903521.1
IPC class: C12N 5/00
Language of proceedings: EN
Distribution: A
Download and more information:
Decision text in EN (PDF, 58.647K)
Documentation of the appeal procedure can be found in the Register
Bibliographic information is available in: EN
Versions: OJ | Published
Title of application: Primate Embryonic Stem Cells
Applicant name: WISCONSIN ALUMNI RESEARCH FOUNDATION
Opponent name: -
Board: EBA
Headnote: 1. The request for a preliminary ruling by the European Court of Justice on the questions suggested is rejected as inadmissible.
2. The questions referred to the Enlarged Board of Appeal are answered as follows:
Question 1: Rule 28(c) EPC (formerly Rule 23d(c) EPC) applies to all pending applications, including those filed before the entry into force of the rule.
Question 2: Rule 28(c) EPC (formerly Rule 23d(c) EPC) 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.
Question 3: No answer is required since Questions 1 and 2 have been answered with yes.
Question 4: In the context of the answer to question 2 it is not of relevance that after the filing date the same products could be obtained without having to recur to a method necessarily involving the destruction of human embryos.
Relevant legal provisions:
European Patent Convention 1973 Art 23(3)
European Patent Convention Art 53(a)
European Patent Convention 1973 Art 164(2)
European Patent Convention R 26
European Patent Convention R 26(1)
European Patent Convention R 28
European Patent Convention R 28(c)
European Patent Convention R 29
European Patent Convention 1973 Art 53(a)
European Patent Convention 1973 Art 112(1)(a)
European Patent Convention 1973 R 23b
European Patent Convention 1973 R 23b(1)
European Patent Convention 1973 R 23d
European Patent Convention 1973 R 23d(c)
European Patent Convention 1973 R 23e
ECJ Case C-337/95
German Bundespatentgericht decision 3 Ni 42/04 of 5 December 2006
Keywords: Admissibility of referral (yes)
Referral for preliminary ruling by European Court of justice (no) - request not admissible, as no power to make such referral under EPC
Rule 28(c) (formerly 23d(c)) EPC applicable to pending applications filed before it came into force (yes)
Rule 28(c) (formerly 23d(c)) EPC intra vires Article 53(a) EPC and in conformity with TRIPS Article 27 (yes)
Exception to patentability of Rule 28(c) (formerly 23d(c)) EPC applicable where claimed product could be prepared exclusively by method necessarily involving the destruction of embryos even if method is not explicitly part of claims (yes)
In assessing the exception to patentability of Rule 28(c) (formerly 23d(c)) EPC technical developments after date of filing not of relevance
Catchwords:

-

Cited decisions:
G 0005/83
G 0001/84
J 0016/96
Citing decisions:
G 0001/07
G 0002/07
G 0001/08
G 0002/12
G 0002/13
T 0522/04
T 0083/05
T 1242/06
T 1199/08
T 1836/10
T 2221/10
T 1441/13
T 1808/13

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