19th okt, 2011

European Court of Justice decides in embryo patent case

Yesterday the European Court of Justice gave its opinion in the case C-34/10 regarding the patentability the use of human embryos for therapeutic or diagnostic purposes.
The case originates in Germany where Greenpeace succeeded in overturning a patent.

The interesting part is that in the news story on BBC the story is painted as a great loss to European research and a researcher is quoted as saying “This unfortunate decision by the court leaves scientists in a ridiculous position”.

Reading the case the matter becomes more clear however.

A German researcher searched for a way out of the prohibition against patenting of human embryos. He did this by not mentioning embryos in the patent application. However the use of the process where the implementation of the process requires either the prior destruction of human embryos or their prior use as base material. The Court decided that the meaning of the word “embryo” in the Bio-directive (98/44/EC) also covers “ A non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted and a non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis must also be classified as a ‘human embryo”. The opinion of the Advocate-General is very good in this part.

The court also looked upon the question if scientific research was considered an “industrial or commercial purpose”. The court concludes that the scientific research cannot be separated from the patent – and “the exception to the non-patentability of uses of human embryos for industrial or commercial purposes concerns only inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it.” For my part I can’t understand howyou could consider a process non-commercial and still apply for at patent? By definition a patent protects your commercial rights.

The case is interpreted as halting the development of medicines which I think is a bad argument. If you develop a cure for cancer because of this process the medicine is patentable under normal requirements. Therefore that argument does not hold.

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