German court backs Brüstle in embryo patent case

The German Federal Court has ruled on the patentability of stem cells obtained from human embryos, allowing Professor Oliver Brüstle to protect his disputed invention in a revised form.

On November 27, 2012 the court overruled a lower German court’s finding that partially invalidated Brüstle’s patent, which covers technology that extracts stem cells at the blastocyst stage. The 2006 invalidity ruling, in a case brought by Greenpeace, was made because precursor cells derived from human embryonic stem cells constituted a use of a human embryo, which cannot be patented at both a national and European level.

The federal court said human embryonic stem cells may be obtained without destroying an embryo—and that human embryonic stem cells obtained by other methods are patentable.

Following the ruling, Brüstle’s patent can exist but with a less restrictive amendment.  The German court said a general disclaimer about excluding the destruction of human embryos would allow people to patent inventions on human embryonic stem cells.

The decision follows a judgment by the Court of Justice of the European Union (CJEU) in October 2011 on how EU Directive 98/44/EC, which bans patents on uses of human embryos for industrial and commercial purposes, interprets the expression ‘human embryos’.

The CJEU ruled that stem cell processes involving the destruction of human embryos, or that are based on the use of embryos, are not patentable. But for cases where stem cells used in the patented technology are obtained at the blastocyst stage—which Brüstle’s patent covers—the CJEU delegated these to the national courts, prompting the federal court’s ruling.

Paul Chapman, partner at Marks & Clerk, said the decision was good news for bio-medical researchers worldwide.

“Those who want to protect inventions relating to human embryonic stem cells in Europe now have a glimmer of hope following the disappointment of last year’s European decision.”

He said that following last year’s CJEU judgment, the European Patent Office (EPO) and UK Intellectual Property Office (UKIPO) implemented guidelines prohibiting patents on stem cells derived from blastocysts. He said many people saw these guidelines as very narrow, and the EPO and UKIPO may revise these restrictive guidelines in light of the November 2012 decision.