The refusal of the EPO to grant a patent (EP 0 770 125) to the Wisconsin Alumni Research Foundation (WARF) that relates to the preparation of primate embryonic stem cells (including human) led to the current appeal. The patent application was rejected under European morality provisions, which prevent the patenting of inventions that use human embryos for industrial or commercial purposes. At the time when the patent application was filed (1995), the only known method to produce embryonic stem cells involved destruction of the embryo.
WARF wanted some aspects of the case to be heard by the European Court of Justice, but this wish was rejected by the EPO board who decided that there was a lack of legal and institutional links between the two bodies. Following this, WARF put forward several objections as to why the patent application should not be prohibited under European patent law. They argued for a highly specific meaning of the word embryo — 14 days or older — but this was rejected. WARF also contended that the use of human embryos was not for industrial or commercial purposes; however, the EPO board explained that inventions have industrial or commercial value even when the intention is to use the product for research purposes. In the disputed patent application, the method of producing the stem cells — which involved human embryo destruction — was not part of the claims. WARF argued that because the method was not claimed, this allowed them to patent the stem cells as products. Again, the EPO board disagreed, stating that the patent application must be looked at as a whole, otherwise one could avoid prohibition by clever phrasing of the claims.
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