Update on Patenting of Human Embryos in Europe and the UK

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Uses of human embryos for industrial or commercial purposes are excluded from patentability in Europe and the UK.  In Decision G2/06 of the Enlarged Board of Appeal of the European Patent Office, it was held that human stem cell cultures that can only be obtained by destroying human embryos are not patentable.  But what is a human embryo?

In October 2011, in the Brüstle case (Case C-34/10), the Court of Justice of the European Union (CJEU) considered whether an unfertilised human oocyte parthenogenetically activated to divide falls under the term “human embryo”.  The CJEU controversially held that a “human embryo” is any unit capable of commencing the process of development of a human being, even if that unit could never have completed development into a human. 

It was further held that an invention is excluded from patentability if prior destruction of a human embryo is required at any stage, even if that destruction occurred long before implementation of the invention or if the description of the technical teaching claimed does not refer to the use of human embryos. 

Although not legally bound to do so, the European Patent Office follows this decision, and the Guidelines for Examination have been updated accordingly:
http://www.epo.org/law-practice/legal-texts/html/guidelines/e/g_ii_5_3.htm

The UK Intellectual Property Office has considered whether it able to depart from the Brüstle decision of the CJEU.  Whilst it concluded that it was permitted to do so, it decided that extreme caution must be exercised in departing from any aspect of the CJEU’s decision.  It should therefore be anticipated that the UK IPO will follow the EPO in applying the Brüstle decision when examining UK patent applications.

Tagged in: biotech EPO EU patents
Katherine is a British and European Patent Attorney. She obtained a BSc in Molecular Biology with French from the University of Manchester. Katherine works on, amongst other things, the patenting of nucleic acid arrays and their use in hybridisation assays, methods of oligonucleotide synthesis, diagnostic tests and treatments for several important diseases, and medical devices.