Stem cell patenting in Europe: the approaching climax

A European patent application covering a culture of primate embryonic stem cells has been referred to the Enlarged Board of Appeal of the European Patent Office (EPO) after rejection by the Examining Division. These stem cells are derived directly from an embryo and so the case falls under the morality provisions of European Patent Convention (EPC) Article 53(a) and the interpretation of Rule 23d(c) of the EPC Regulations, which excludes the patenting of 'uses of human embryos for industrial or commercial purposes'. The issues before the Enlarged Board are analysed and possible approaches to their resolution are offered. An opinion on the likely outcome of the Appeal is provided. Additional observations on non-moral issues are also offered.