Court of Justice of the European Union: new ruling regarding patents and stem cells

With its decision of 18 October 2011, the European Union Court of Justice (ECJ) ruled in the case of Oliver v. Brüstle Greenpeace eV (C-34/10) on patent law and stem cells, excluding the use of human embryos from patentability. The German Federal Patent Supreme Court (the Bundespatentgericht) had declared invalid, at the request of Greenpeace, the patent owned by Mr. Oliver Brüstle related to neural progenitor cells isolated and purified, obtained from human embryonic stem cells, used to treat neurological diseases and especially for Parkinson disease. The patent was declared invalid as concerning the use of human embryos for industrial and commercial aims, which is prohibited by patenting pursuant to Article 6 (2)(c) of Directive 98/44/EC on the legal protection of biotechnological inventions. However, on appeal of Mr. Brüstle, the German Supreme Court (the Bundesgerichtshof) questioned the ECJ on the interpretation of the term "human embryo" in Directive 98/44/EC in order to declare whether the human embryonic stem cells that serve as starting material for the patented processes constitute "human embryos" for the purposes of that legislation. The ECJ said that the term "human embryo" should be interpreted broadly. For this reason, since its fertilisation any human ovum must be considered as "human embryo". It also falls within that definition the non-fertilized human ovum in which has been implanted the nucleus of a mature human cell and the unfertilized human ovum induced to divide and develop through parthenogenesis. The Court also stated that "the exclusion from patentability concerning the use of human embryos for industrial or commercial purposes set out in Article 6(2)(c) of Directive 98/44 also covers the use of human embryos for purposes of scientific research, only use for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it being patentable" . Finally, as stated by the ECJ "article 6(2)(c) of Directive 98/44 excludes an invention from patentability where the technical teaching which is the subject-matter of the patent application requires the prior destruction of human embryos or their use as base material, whatever the stage at which that takes place and even if the description of the technical teaching claimed does not refer to the use of human embryos".


11/21/2011 | Patent