Patenting stem cells: filing date is the key

The EPO generally accepts applications relating to human embryonic stem cells with an effective date after 2008 but discussions about eligibility continue, says Joachim Wachenfeld.

In the inaugural issue of the LSIPR quarterly, Andy Sanderson analysed options of obtaining patent protection in the aftermath of the Brüstledecision of the Court of Justice of the European Union (CJEU) that further restricted options of applicants to obtain patent protection for human embryonic stem (hES) cell-related inventions.

The CJEU made clear that, at least for inventions claiming priority prior to 2008, hES cells cannot be patented even where the cells are derived from an established hES cell line rather than directly obtained from an embryo. The reasoning behind the CJEU’s decision was that the technology prior to 2008 allowed hES cell lines to be established only by destruction of an embryo.

Prior to the issuance of the Brüstle decision by the CJEU, the Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) in its decision G2/06 had ruled on the patentability of stem cell-related inventions. It held that inventions pertaining to hES cells constituted unpatentable subject matter if the application only disclosed ways of obtaining hES cells comprising the destruction of an embryo.