Yesterday the European Patent Office (EPO) heard oral submissions on the application of Wisconsin Alumni Research Foundation (WARF) for a European patent that relates to human embryonic stem cells. All in all, some 126 submissions were received from interested parties, including the United Kingdom Intellectual Patent Office (UK-IPO) -- which observes that there is no consensus within European Patent Convention Contracting States concerning the public policy issues which WARF’s application raises.
The IPKat has received a press statement from Scotland-based IP practice Shepherd and Wedderburn, which endorses the UK-IPO’s position that it is for Contracting States and not the EPO to determine acts which they consider to be immoral. Says the statement:
"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".The firm predicts that the EPO is likely to move cautiously [the IPKat says, that's no surprise if you consider its movements over the past 30 years], concerned not to be seen as pushing potentially unwanted technical innovation on to 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 firm's conclusion is that 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 [the IPKat has never understood why this should make any difference: wherever the R&D cash is spent, the results will be either patentable or non-patentable in the same markets -- and even the absence of patent protection has never stopped people commercialising their products if they see a profit ahead. Can someone assist him?].
The IPKat awaits further developments with bated breath.