CJEU tells Europe to leave human embryos out of it

Stem cell research methods that involve human embryos cannot be patented under EU law, the Court of Justice of the EU (CJEU) has said.

It added that uses of human embryos are patentable when the use is diagnostic or therapeutic in nature and is usefully applied to the human embryo, but inventions based on human embryos for scientific research purposes cannot be patented.

The CJEU issued a preliminary ruling in the Oliver Brüstle v Greenpeace on October 18.

Oliver Brüstle’s patent covers isolated and purified neural precursor cells produced from human embryonic stem cells that are used to treat neurological diseases, including Parkinson’s disease.

Greenpeace opposed the patent in Germany because it involves the use of human embryos. A German court invalidated the patent, but Brüstle appealed against the decision.

Before making a decision in the appeal, the German Federal Court of Justice referred several questions to the CJEU for a preliminary ruling.

The Federal Court was unclear about how ‘human embryo’ should be interpreted as it is not defined in the Biotechnology Directive.

It also wanted the CJEU to clarify whether the patentability of scientific research involving human embryos was included in the directive’s commercial exploitation exclusion, and whether an invention is patentable if its purpose is not to use human embryos but involves their destruction.

The CJEU’s ruling largely confirms Advocate General Yves Bot’s March 10 opinion. Bot said that, under Brüstle’s patent, the cells being used had the capacity to evolve into complete human beings so they had to be classed as human embryos, and so should be excluded from patent protection.

Dr Christoph Then, patent counsel for Greenpeace, said that the CJEU’s ruling protects all phases of human development from commercial exploitation and strengthens the protection of human life over economic interests.