The European Union Ban on Stem Cell Patents

On October 18, 2011, in the case of Oliver Bruestle v. Greenpeace, the European Court of Justice (ECJ) unanimously ruled that no invention resulting from medical research involving the destruction of human embryos for their cells can be patented in any of the 27 member countries of the European Union. The ECJ issued its ruling in response to an appeal of a German court decision invalidating the 1997 patent on a technique to create neural precursor cells from human embryonic cells. The final determination of this case is still to be made by the German courts. The October ruling by the ECJ was not the first indication that the European patent system was entertaining doubts about the patentability of stem cell inventions. In December 2008, the European Patent Office (EPO) refused a patent for a stem-cell application that covered technology developed by Dr. James Thomson, a University of Wisconsin researcher, to culture primate embryonic stem cells derived from pre-implanted embryos. The EPO's Enlarged Board of Appeals ruled t that under the European Patent Convention (EPC), "it is not possible to grant a patent for an invention which necessarily involves the use and destruction of human embryos. " The Moral Dilemma The recent court decisions reflect an ongoing debate about the patentability of genes and other human or human-derived elements that is inextricably tied up with certain moral beliefs. Religious and faith-based organizations, which tend to connect stem cell work and other kinds of research that destroy embryos to the anti-abortion movement, have generally applauded the derision in Breustle v. Greenpeace. The original suit was filed by Greenpeace of Germany, a subsidiary of Greenpeace International, based on a quite different moral argument. Sharing a view widely held by European environmentalists, Greenpeace is concerned by what it perceives as the commercialization of the human body. Congruent with this long-held position, Greenpeace opposes all patents on genes, plants, or parts of the human body, including genes, and regards the biodiversity of the Earth as the common heritage of human kind. While there is little evidence of Greenpeace pursuing a concerted legal campaign challenging human embryonic stem cell patents, it is a longstanding policy position of the organization that genes cannot be patented. The ECJ ruling in the case of Oliver Bristle v. Greenpeace is predicated on an argument of morality, as well, arguing that the patent violates European law, specifically Article 53(a) of the EPC, which prohibits the patenting of any invention whose commercial exploitation would be contrary to public order or morality. In the opinion of the Court, the EPC provision clearly forbids the deliberate destruction of human embryos, as such activity is viewed by European society as "contrary to morality" and falls under the provision that bars the granting of patents "where respect for human dignity could thereby be affected. " However, in its ruling the ECJ did limit the reach of its decision, holding only that using human embryos "for purposes of scientific research is not patentable. " The Court affirmed that a European patent on a technique or technology using human embryos would be valid if the invention had diagnostic or therapeutic aims with regard to correcting defects in the embryo itself. European Stem Cell Research: Rest in Peace? Unsurprisingly, many scientists denounced the ECJ ruling, arguing that it could further restrict basic stem cell research since companies will be less interested in investing if they are unable to protect their inventions. Pete Coffey, a stem cell researcher at University College London, said in a statement, "This is a devastating decision which will stop stem cell research in medicine. The potential to treat disabling and life-threatening diseases using stem cells will not be realized in Europe. " In a Wall Street Journal article, Robert Lanza, chief scientific officer at Advanced Cell Technology Inc. …