Referral to ECJ - patentability of human embryos

A German court has referred a question to the European Court of Justice (ECJ) regarding the interpretation of Article 6 of Directive 98/44/EC (the “Biotech Directive”), particularly the part prohibiting “the use of human embryos for industrial or commercial purposes”. The question arises from an action brought in Germany for revocation of a patent concerning the use of blastocyst-derived stem cells in the treatment of neural diseases. Blastocysts exist at pre-implantation stage in development and are therefore often not considered to be embryos. Also, courts in the UK, France, Spain, Sweden and Denmark have previously ruled that the word “embryo” only applies from 14 days following fertilisation. The claimant for revocation argues that the exclusion should still apply as they consider human life to start at the point of fertilisation. The principal issue is therefore the interpretation of the word “embryo” in Article 6 of the Biotech Directive, and whether or not it covers blastocysts.

The outcome of this case will be of considerable interest to those working in, for instance, stem cell research, but it will be some time before the ECJ hands down its decision.

AdamsonJones

19 November 2009