3 December 2012
The German Federal Court of Justice has ruled that a
disputed patent held by Dr Oliver Brüstle is valid in its revised form. The patent has already been subject to a ruling by the European Court of Justice (ECJ) against the
patentability of processes that involve the destruction of human embryos or are
based on the use of human embryos.
To make its judgment, the German Federal Court of Justice asked the ECJ for
its interpretation of the concept of 'human embryo' under European Union law. However, in its
judgment the ECJ did not decide whether cells obtained
from a human embryo at the blastocyst stage - the subject of Dr Brüstle's patent - were
patentable, saying this was a matter for the referring court.
The German court considered that Dr Brüstle's patent did not involve the destruction of
human embryos. It also thought that on their own human embryonic stem cells (hESCs) do not possess the
capabilities to become human beings and could not be treated as
human embryos. However, it also put itself in line with the ECJ by ruling that no patents would be granted for hESCs where human embryos have been destroyed.
Commenting on the decision, Paul Chapman, a partner at law
firm Marks & Clerk, said: 'This is good news for biomedical 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'.
Mr Chapman explained that following the ECJ's ruling the
European Patent Office and the UK's Intellectual Property Office published
narrow guidelines that prohibited patents on all stem cells derived from
blastocysts.
'There is a prospect that the current restrictive guidelines by the EPO and the UKIPO may be revised in light of this decision', he said.
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