BOARDS OF APPEAL
Information from the Enlarged Board of Appeal
Communication from the Enlarged Board of Appeal concerning case G 2/06
By interlocutory decision T 1374/04 dated 7 April 2006, Technical Board of Appeal 3.3.08 has referred the following points of law to the Enlarged Board of Appeal following Article 112(1(a) EPC :
(language of the proceedings)
1. Does Rule 23d(c) EPC apply to an application filed before the entry into force of the rule?
2. If the answer to question 1 is yes, does Rule 23d(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?
3. If the answer to question 1 or 2 is no, does Article 53(a) EPC forbid patenting such claims?
4. In the context of questions 2 and 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)?
The text of the referral in the English language is available on the Website of the European Patent Office under
legal.european-patent-office.org/dg3/pdf/t041374eu1.pdf
The case is pending under Ref. No. G 2/06.
The Enlarged Board of Appeal considering the referral will be composed as follows:
P. Messerli (Chairman), S. Perryman, U. Kinkeldey, A. Nuss, J.-P. Seitz, M. Scuffi, O. Spineanu-Matei.
It is expected that third parties will wish to use the opportunity to file written statements in accordance with Article 11b of the Rules of Procedure of the Enlarged Board of Appeal (OJ EPO 2003, 59). To ensure that any such statements can be given due consideration without holding up the proceedings more than necessary, they should be filed by the end of October 2006 at the Registry of the Enlarged Board of Appeal, quoting case number G 2/06.