Patentability of human embryonic stem cells

WARF's European patent application

Wisconsin Alumni Research Foundation (WARF) has applied to the European Patent Office (EPO) for a European patent which relates to human embryonic stem cells. The application has been published by the EPO as EP 0 770 125.

The examining division of the EPO refused the application on moral grounds - that is, under Article 53(a) EPC. WARF appealed this decision to the Technical Board of Appeal, who has referred four questions to the Enlarged Board of Appeal.

These questions concern complex and over-lapping issues of technology, morality and patent law. The answers from the Enlarged Board are likely to set an important precedent for European patent applications which relate to human embryonic stem cells. Therefore submissions were invited from third parties on how the questions should be answered. On Monday 30th October, we filed a detailed submission on behalf of the UK (53Kb).

It argues that the EPO should not refuse to grant patents on moral grounds when there is no clear consensus among its contracting states on the morality of stem cell research and patenting. This would deny patent protection in those states where such technology is morally acceptable and allowable.

The current UK position, as set out set out in the 2003 practice notice, is that we will grant patents for pluripotent human embryonic stem cells (i.e. those that do not have the potential to develop into an entire human body), provided they satisfy the normal requirements for patentability.

Over 160 submissions have been filed in total. They can be viewed by going to Epoline Register Plus , entering "EP0770125" and selecting "All documents".