Nach Artikel 53 a) werden europäische Patente insbesondere nicht erteilt für biotechnologische Erfindungen, die zum Gegenstand haben: die Verwendung von menschlichen Embryonen zu industriellen oder kommerziellen Zwecken;
Entscheidung der Großen Beschwerdekammer vom 25. November 2008:
Question 1:
Does Rule 23d c) [now 28 c)] EPC apply to an application filed before the entry into force of the rule?
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:
If the answer to question 1 is yes, does Rule 23d(c) [now 28(c)] EPC forbid the patenting of claims directed to products (here human embryonic stem cell cultures) 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, if the said method is not part of the claims?
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:
If the answer to question 1 or 2 is no, does Article 53 a) EPC forbid patenting such claims?
No answer is required since Questions 1 and 2 have been answered with yes.
Question 4:
In the context of questions 2 arid 3, is it 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 (here: eg derivation from available human embryonic cell lines)?
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.