Human stem cell patents?

The IPKat was interested to read on the Patent Office website of Wisconsin Alumni Research Foundation’s EPO application for a patent which relates to human embryonic stem cells. The application was refused by the EPO examining division under Art.53(a) EPC (moral grounds). An appeal to the Technical Board of Appeal followed, which referred 4 questions to the Enlarged Board of Appeal. Because of the importance of the issue, the Enlarged Board invited third-party submissions.

The UK filed its response on 30 October. According to the Patent Office, the contents (in potted form) are as follows:
[The response] 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 IPKat isn’t convinced. On such an important issue, where there is so little consensus, a cautious approach to patent protection is to be preferred.


The Prague Monitor reports that Budejovicky Budvar NP has succeeded in registering BUDWEISER BUDVAR as a trade mark in Portugal, despite objections from Anheuser-Busch. Details about the ruling don’t seem to be available yet, but the IPKat wonders what affect, if any, this will have on Anheuser-Busch’s case against Portugal before the European Court of Human Rights.
EPO ON STEM CELL PATENTS; BUDWEISER SAGA PT.352 EPO ON STEM CELL PATENTS; BUDWEISER SAGA PT.352 Reviewed by Unknown on Friday, November 10, 2006 Rating: 5

1 comment:

Luke Ueda-Sarson said...

I'm surprised by the IPKat; I'd have thought the 'cautious' approach would be to note that the the EPC itself says that "exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States", and that otherwise "European patents shall be granted for any inventions". The word "shall" has a clear legal meaning; and any restriction on it, such as the 'morality' [sic] exception, must be drawn narrowly.

If national authorities wish to deny patentees the right to expolit patents on a national basis, they may legislate to do so. The EPC shouldn't be the mechanism used to bring about similar results (but not the same: as the UKPO notes, the EPC covers all signatories). It is unfortunate that a technical board can feel free to expand it role into that of the legislature; actions like this can only enhance the perception of the EU's 'democracy deficit'.

(Not that the EU's own legislature is entirely democratic of course. Maybe that is why the technical board concerned feels they can step into its shoes...)

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