European Court of Justice: No Patents on Human Embryonic Stem Cells

Posted by Marcy Darnovsky October 27, 2011
Biopolitical Times
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The European Court of Justice ruled last week that processes and products involving human embryonic stem cells are not eligible for patents. The decision was the culmination of a long-running case initiated by Greenpeace against a patent on a method for generating neurons from human embryonic stem cells held by German scientist Oliver Brüstle.

The court, which is essentially the supreme court of the European Union, whose decisions are binding on the EU’s 27 member countries, based its ruling on a 1998 EU Directive that disallows patents on

  • "processes for cloning human beings,"
  • "processes for modifying the germ line genetic identity" and 
  • "uses of human embryos for industrial or commercial purposes."

The court’s move does not restrict research on human embryos or on stem cells derived from them, but does limit what can be patented. Under EU law, human body parts such as organs, bone marrow and skin grafts are not patentable; the recent decision extends that to embryos and processes that require their destruction.

Greenpeace, which has long opposed patents on plants, animals, and genes, welcomed the decision. "We're not against research on human embryonic stem cells," spokesperson Christoph Then told the Wall Street Journal. "But this involves the commercialization of the human body, which we are against." Responding to questions about abortion rights opponents’ support for the ruling, Then said that Greenpeace approaches the issue from "a completely different angle.”

Stem cell researchers, on the other hand, tended to react with dismay, with some issuing dire warnings that the ruling will make it impossible to develop treatments based on embryonic stem cells. Oliver Brüstle, whose patent instigated the case, called it "a disaster for Europe." Pete Coffey, a stem cell researcher at University College London, said it “casts real doubt on the possibility of new medicines from stem cell research."

But there were also less predictable reactions from a number of quarters. Science reported that some “observers say the impact may be relatively minor [since] Europe-based companies can still file for patents in the United States and other countries” and that the ruling could in fact “increase hES cell work in Europe, since the region will be free of intellectual property hurdles.” Similarly, British patent specialist Julian Hitchcock, an enthusiastic supporter of embryonic stem cell research and patents on it, told the Financial Times that the “ruling may actually present an opportunity for researchers who in the past have complained that their work is held back by the fear of inadvertently infringing a patent.”

Writing for the blog CellFATE (Federation for Advanced Therapies in Europe), Hitchcock uses even stronger language. Though he considers the Court of Justice decision to be “dumb” and to have “unfair and unjust consequences for a small number of patentees and patent applicants,” he advises investors, researchers and patients (in that order) to “relax.” In posts titled “Why Brüstle doesn’t affect Europe (except positively)” and “Brüstle v Greenpeace: Sorry to be optimistic….,” Hitchcock argues that

“the judgment represents a net benefit to European Regenerative Medicine. Indeed, by improving the research environment, Greenpeace will have increased the amount of stem cell research being conducted in Europe: not reduced it.”

The Court of Justice decision on stem cell patents will have no direct effect in the United States, but it is a significant part of a burgeoning global reconsideration of patents on plants, animals, and human genes and biological materials. As the political, policy and legal moves continue, we could do worse than to keep in mind the reply made by Jonas Salk when asked in 1955 who owned the long-awaited polio vaccine he had just developed. “The people, I would say,” Salk told Edward R. Murrow. “There is no patent. Could you patent the sun?”

Previously on Biopolitical Times: