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F&E Patent

Patentability of embryos and human stem cells

The European Court of Justice (EuGH) considerably restricts the patentability of embryos and human stem cells

In the decision EuGH C-34/10 of October 18, 2011 the European Court of Justice stated that all types of totipotent stem cells obtained from undifferentiated cells are falling under the definition of an “embryo” according to Article 6 IIc. of the Directive 98/44/EC (“Biotechnology Directive”). Thus, the EuGH excludes all these types of cells from patentability. Whether pluripotent cells, e.g. cells obtainable from an embryo in blastocyte stage, are patentable, has to be decided by national courts.

The commercial use of such embryo cells is only patentable in case when said use is for the embryo’s own end.

Furthermore the EuGH statd that exclusion from patentability refers to all stem cells obatined by any destruction of a human embryo, even in case this destruction step is not part of the described invention. This results in the restriction of any invention involving such stem cells, as well already prepared stem cell lines. Not affected from said restriciton are e.g. stemm cells obtained by re-programmation of adult cells (induced pluripotent stemm cells).

(Dr. Barbara Engels)


Further information concerning this issue:

» EuGH decision concerning use of embryos and human stemm cells