The Court of Justice of the EU ruled on Oct. 18, 2011 that “A process which involves removal of a stem cell from a human embryo at the blastocyst stage, entailing the destruction of that embryo, cannot be patented.” The ruling was not unexpected, following as it did a preliminary ruling in March 2011 by the Court that prohibited patents on embryonic stem cells, declaring such patents to be “contrary to ethics and public policy.”
The final ruling goes further than the preliminary ruling, laying down broad restrictions on patenting any procedure or process that requires the destruction of an embryo. Included in the ban are patents on scientific research entailing the use of human embryos, and patents of procedures and processes using embryonic stem cells derived by processes that result in destruction of an embryo. In the press release accompanying the ruling, the court states “In conclusion, the Court holds that an invention is excluded from patentability where the implementation of the process requires either the prior destruction of human embryos or their prior use as base material, even if, in the patent application, the description of that process, as in the present case, does not refer to the use of human embryos.”
While the European research community is not banned from conducting embryonic stem cell research, the climate for commercializing any discoveries is now decidedly unfriendly. IP protection can still be obtained for embryonic stem cells in the US, but Europeans wishing to pursue research on stem cells with the ultimate goal of developing therapeutics might be better off switching to stem cells derived from adults, or must adopt ways of obtaining embryonic stem cells without destroying embryos. The scientific community generally does not view adult-derived stem cells as being equivalent to embryonic stem cells, and therapeutics derived from either are not numerous or far enough along in development to know which class will prove to be safer or more effective in the clinic. However, this seems to be a case where drug development will have to accommodate the wishes of society.
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