Wednesday, October 19, 2011

European Court: No Patents on Human Embryonic Stem-Cell Products

The European Court of Justice ("ECJ") has held that scientists cannot patent products developed from any research which involves the destruction of the human embryo. The Court's full opinion is here. Greenpeace (!) began the case in 2004 by suing to block a Bonn researcher's patent on a technique for deriving neural cells from human embryonic stem cells. European law has banned patenting in connection with the "uses of human embryos for industrial or commercial purposes" since 1998, and German law includes similar language. The Greenpeace case turned on whether a blastocyst destroyed in creating a stem-cell line counts as an "embryo;" whether "industrial or commercial purposes" includes university-based research; and whether the European patent-exclusion law applies to research that is conducted significantly downstream from the act of embryonic destruction (for example, on stem cell lines produced many years ago, and purchased by German researchers from researchers in other countries). The German court's 2006 ruling in favor of Greenpeace was appealed to the German supreme court, who referred it to the ECJ for clarity on the meaning and application of the various terms. Earlier this year the ECJ's advocate-general recommended that the court uphold the patent ban, so yesterday's opinion was widely expected. The court held, first, that the term "embryo" includes any fertilized egg, any product of "research cloning" (in which an unfertilized egg has introduced into it a nucleus from a mature cell), and any parthenote (an unfertilized egg whose division and development have been artificially stimulated by researchers). (This last holding is surprising to me, since parthenotes aren't capable of developing into babies.) Next, the court held that scientific research is included within the legal restriction from patentability concerning the use of embryos "for industrial or commercial purposes". Finally, the court found that the patent restriction applies no matter how distant the research or patent is from the original act of embryonic destruction, and even if the patent itself makes no mention of embryos (referring, for example, only to particular cell-lines originally derived from embryos). There's a fine technical overview of the opinion here.

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