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Patent trouble Ahead, embryo stem cell Patents might infringe EU Law

Patent protection for stem-cell research methods that involve cells from human embryos (could) breach EU Union law, according to the region’s highest court in a non-binding (so far) opinion.

In the case, C-34/10, Prof. Dr. Oliver Bruestle v. Greenpeace eV;   Greenpeace challenged a German patent awarded to Oliver Bruestle, a professor and specialist in stem-cell research. Greenpeace, which said it sued for “ethical reasons,” argued the patent for a stem-cell research process developed by Bruestle to treat neural diseases is invalid because it covers cells derived from human embryos. The Federal Court of Justice, Germany’s highest civil court, had last year asked for guidance on the case.

  • Under an EU law from 1998, research methods that involve human embryos for industrial or commercial purposes can’t be patented. A German court handling the dispute at the center of today’s case sought the EU tribunal’s view on how to interpret this phrase and the term “human embryo.”

Greenpeace said the outcome was an important guideline for the future. “Our aim with this case was to clarify the scope of protection of human embryos,” Christoph Then, an adviser to Greenpeace and we have to wait for the court’s final decision now.”(HWM and S Bodoni, Bloomberg)

The Bottom Line: The outcome was unexpected, surprising and very restrictive. Should this be followed by the court, it would have very serious disadvantages for medical stem-cell research in the EU. Inventions based on certain stem cells “can be patentable only if they are not obtained to the detriment of an embryo” resulting in its destruction or modification, said Yves Bot, advocate general of the European Court of Justice. The Luxembourg- based EU court follows such advice in a majority of cases. A technical process which requires “either the destruction of human embryos, or their use as base material,” can’t be patented. However, the advocate general said so-called pluripotent embryonic stem cells, such as those Bruestle used, don’t fall under the definition of embryo because “they are no longer capable of developing into a complete human being.” Still, it isn’t possible to ignore the origin of stem cells.