German Brüstle Decision Puts Spotlight on National Patent Guidelines

Untitled Document On 27 November the case of Brüstle v Greenpeace was remitted to the German Federal High Court. Its decision had been awaited impatiently. How exactly would a national court interpret the controversial ruling of the Court of Justice of the European Union (CJEU), which in October 2011, had held that patent rights could not be granted in the EU for the use of any entity 'capable of commencing the process of development of a human being'?

Dubbed 'human embryos' for purposes of the Biotechnology Directive (Directive 98/44), fertilised eggs, CNR (cell nucleus replacement) eggs, parthenotes and anything else having the capacity to begin the journey of human development, could not, the CJEU declared, be patented for 'industrial or commercial purposes' (a term which it also construed broadly). All that mattered, said the CJEU, was the potential to begin development. The fact that such entities cannot complete their development (technical and legal limitations prevent them from even developing bodies) was immaterial.

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