With decision dated February 4th, 2014 (Case T-2221/10), one of the EPO Boards of Appeal (the “Board”) ruled on the highly debated issue of human stem cell patentability under the European Patent Convention (“EPC”). In particular, the Board confirmed that human embryonic stem cell inventions are not patentable under Article 53(a) of the EPC and clarified the technical and legal boundaries of such exclusion.

The Board confirmed that, under the provisions of both Article 53(a) and Rule 28(c) of the EPC Implementing Regulation, any invention concerning and/or based upon human stem cells or stem cell lines and cultures which can only be obtained de novo via the prior destruction of human embryos are excluded from patentability due to their being “contrary to public order or morality” and as they consist of “uses of human embryos for industrial or commercial purposes”.

The Board specified that, in order to avoid the said exclusion of patentability, it is not sufficient that a patent application does not expressly claim and/or mention in the description that the human embryonic stem cells are obtained via the destruction of human embryos. Further, the Board has argued that any invention that relies on the use of embryonic stem cells originally produced by a method involving the destruction of a human embryo, irrespectively of the wording of the claims, is not patentable.

For the purposes of such assessment the Board confirmed that it is necessary to consider “all the steps preceding the claimed use of the stem cells which are necessary precondition for carrying out the claimed invention”.

The Board concluded that the solution upheld also results to be fully in line with the provisions of Article 6(2)(c) of the 98/44 EC Directive and with the findings of the ECJ in the recent C-34/10 case.