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Media Releases
2008

25 June
2008

The EPO Will decide for European States whether stem cell research should be permitted

The European Patent Office (EPO) is today hearing oral submissions on the application of Wisconsin Alumni Research Foundation (WARF) for a European patent that relates to human embryonic stem cells.

The EPO has received submissions from 126 parties expressing an interest in the case. The United Kingdom Intellectual Patent Office (UKIPO) has made a submission arguing that there is no consensus within Contracting States, much less among them, concerning the public policy issues which WARF’s application raises.

Shepherd and Wedderburn, a leading UK law firm, endorses the UKIPO’s position that it is for Contracting States to determine acts which they consider to be immoral, not the EPO. The issues raised by bioscience are within the margin of appreciation of Contracting States. It is unfair to WARF that the moral acceptability of its purported innovation will be decided upon by the EPO, based on its perception of what may be acceptable across the breadth of Contracting States.

Joanna Boag-Thomson, a partner in the Media and Technology group at Shepherd and Wedderburn said:

‘In the United States, patent applications are governed by 35 USC 102. This legislation does not refer to the moral acceptability of an invention or process. Article 53 of the European Patent Convention obliges the EPO to consider the moral dimension to patent applications.

The EPO is likely to move cautiously, concerned not to be seen as pushing potentially unwanted technical innovation onto the more conservative Contracting States. This caution, concerning issues of public policy which ought rightly to be decided at Contracting State level, may have unintended consequences.

The imposition of moral criteria upon patent application decisions in the stem cells field may well drive investment from Europe to jurisdictions where patent criteria will be decided upon solely on the basis of merit – prior art, in the jargon.’

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