The EPO decides on disclaimers practice in a neuronal precursor cells case

In a decision of February 26, 2015 (T 1808/13), the EPO had to deal with embryonic stem cells as well as a method for producing neuronal precursor cells. To this problem, the Enlarged Board of Appeal (G2/06) has already decided that the EPC does not allow patenting of products which at the application date could only be produced by a method that mandatorily required the destruction of human embryonic stem cells from which the product is gained. The Applicant has tried to take this into account by means of a disclaimer according to which the method does not encompass the destruction of human embryos. Hereto, the Board of Appeal has decided that the subject matter remaining after the introduction of a disclaimer in the claim must be directly and unambiguously at least implicitly disclosed in the original application. This also applies a disclaimer is introduced due to legal requirements. A method for producing human embryonic stem cells which does not require the destruction of the embryo was, according to the Board of Appeal, not originally disclosed. The Board of Appeal, however, found a method using non-human embryonic stem cells as originally disclosed. The case has been remitted to the Opposition Division.