Patentability of embryonic stem cells

According to the European directive on the legal protection of biotechnological inventions every form of human cloning is to be excluded from patentability. The ban becomes valid 14 days after the fertilization, though. If a commercial use of earlier human embryos or the stem cell lines that have been obtained from them should be excluded from patenting as well has been a controversial issue for a long time. The issue became relevant, among others, through a patent rights dispute between Oliver Brüstle, a stem cell researcher from Bonn, and Greenpeace. In 1999, Brüstle was granted a patent on neural progenitor cells obtained from human embryos. After Greenpeace had successfully sued before the German Federal Patent Court for withdrawal of the patent and Brüstle had appealed, the case was submitted for judgement to the European Court of Justice (CJEU) in November 2009. The CJEU answered with the landmark court decision of 18 October, 2011. A second landmark court decision of the CJEU followed on 18 December, 2014, in which it decided on fundamental objections raised by the British Patents Court to a patent grant to the Canadian biotechnology corporation Stem Cell Corporation. Accordingly, and following the opinion of the independent Advocate General of the Grand Chamber of the CJEU, Yves Bot, every discovery is discarded from patenting “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“. In this regard, the definition of a human embryo remains a central discussion point. The CJEU declared this a matter to be ascertained by the member states on the national level.

A detailed presentation of the European jurisdiction over the patentability of embryonic stem cells and its implementation in German law can be found in the sections on legal aspects in Germany and the European Union in the "In Focus" on Stem Cell Research: Online Version

Judgment of the German Federal Patent Court (Bundespatentgericht) of 5 December, 2006, concerning the case 3 Ni 42/04 (Oliver Brüstle vs. Greenpeace e.V.). Online Version (German) 

Decision of the German Federal Court of Justice (Bundesgerichtshof, BGH) of 17 December, 2009, to submit questions regarding the interpretation of the European “Biotech Directive” to the European Court of Justice (CJEU). Online Version (German) 

Judgment of the European Court of Justice (CJEU) of 18 October, 2011, concerning the case C-34/10 (Oliver Brüstle vs. Greenpeace e.V.). Online Version

Opinion of Advocate General Yves Bot delivered on 10 March, 2011, concerning the case C-34/10 (Oliver Brüstle vs. Greenpeace e.V.). Online Version

Judgment of the German Federal Court of Justice (Bundesgerichtshof, BGH) of 27 November, 2012, concerning the case X ZR 58/07 (Oliver Brüstle vs. Greenpeace e.V.). Online Version (German)

Judgment of the European Court of Justice (CJEU) of 18 December, 2014, concerning the case C-364/13 (International Stem Cell Corporation vs. Comptroller General of Patents, Designs and Trade Marks). Online Version

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