In an interlocutory referral [PDF] of law from the Technical Board of Appeal, the European Patent Office’s Enlarged Board of Appeal upheld the July 2004 decision of the Examining Division rejecting European patent application EP19960903521 [PDF] entitled Primate Embryonic Stem Cells under Article 53(a) and Rule 28(c) [formerly 23d(c)] of the European Patent Convention.

The invention covered “A cell culture comprising primate embryonic stem cells” which, at the time, required the use and destruction of human embryos as starting material. This was found to be contrary to the Article 53(a) of the EPC which provided subject matter exceptions for “inventions the commercial exploitation of which would be contrary to ‘ordre public’ or morality” and more specifically Rule 28(c) which prohibited inventions for “uses of human embryos for industrial or commercial purposes.”