Transgenic non-human animals have been confirmed as patentable subject-matter but applications and patents need to satisfy tests under Rule 23d(d) and Article 53(a) EPC. This is the outcome of the opposition procedures concerning patent EP-B-0169672, filed in 1985 and concerning transgenic non-human mammals containing an oncogene. Oppositions were filed by 17 opponents. Following opposition the patent was restricted to rodents and then subsequently further restricted after appeal proceedings. The case turned on the effect of Rule 23(d) EPC concerning the “morality” exceptions to patentability. That Rule excludes from patentability inventions relating to processes for modifying the genetic identity of animals in which the suffering of the animal is NOT outweighed by the substantial medical benefit to mankind or animals. Only mice, being standard laboratory test animals, satisfied the morality criteria.
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