Stem Cell Patents: Does T 0866/01 ('Euthanasia Compositions') of an Appeal Board of the EPO Provide the Answers for the Enlarged Board of Appeal Case G 2/06 ('Primate Embryonic Stem Cells')?

摘要

THIS REPORT DEALS with decision T 1374/04 of a Technical Board of Appeal of the European Patent Office (EPO), which forwarded several questions concerning the patentability of claims directed to embryonic stem cells to the Enlarged Board of Appeal (EBA). The case before the EBA is still pending as G2/06. Moral aspects of stem cell technology are the subject of great controversy among the European public. Whereas a detailed consideration of all moral aspects of stem cell technology may turn out to befairly complex, the EBA will have to make its decision solely on the basis of the EPC and the relevant articles and rules laid down therein, in particular, Article 53(a) EPC and Rule 23d(c) EPC. Here, I show how, within the legal framework of the EPC, the Technical Board in charge dealt with issues of morality in the recent Decision T 0866/01 ("Euthanasia compositions"). This case might provide some hints as to how the EBA might find a way to provide the answers in the case G 2/06 pending before it.