Court allows patenting of stem cell technologies

In interpreting a landmark decision by the European Court of Justice, the German Federal Court of Justice has ruled that technologies involving cells derived from human embryonic stem cells that do not directly involve the destruction of human embryos can be patented.

The court upheld a patent awarded to University of Bonn professor Oliver Brustle, which had been disputed in a legal challenge by Greenpeace under the EU Biotechnology Directive, which bans the use of human embryos for industrial and commercial purposes.

In a decision in October 2011, the European Court of Justice ruled that technologies that have at any stage involved the destruction of a human embryo could not be patented, leading stem cell researchers to fear that translational research in Europe might suffer. There is thought to be no similar restriction on patenting outside Europe.

However, in interpreting this ruling on November 2012, the German court determined that in vitro cells derived from the blastocyst stage of embryo development did not themselves have the capability to develop into people, and therefore did not count as human embryos.

The ruling means that, except when stem cells are harvested by destroying human embryos, cells derived from human embryonic stem cells can be patented.

The court upheld - in an amended form - Professor Brustle’s patent, which was originally granted in 1999 for producing neural precursor cells, which have the potential to treat neurological disorders such as Parkinson’s disease.

“This is good news for biomedical researchers worldwide,” said Paul Chapman, partner at UK patent law firm Marks & Clerk. “Those who want to protect inventions relating to human embryonic stem cells in Europe now have a glimmer of hope following the disappointment of [the] European decision.”

Following the 2011 judgment, the European Patent Office and the UK Intellectual Property Office implemented guidelines prohibiting patents on stem cells derived from blastocysts altogether, he said.

“These guidelines were seen by many as very narrow. There is a prospect that the current restrictive guidelines by the EPO and the UKIPO may be revised in light of this decision,” added Mr Chapman.

elizabeth.gibney@tsleducation.com.