In the European Union, research is supported and funded by Framework Programmes. One of their goals is to create opportunities for industry in Europe based on EU-generated knowledge. Participation of industry in collaborative research projects is encouraged. A block on patents would make this extremely difficult to achieve.

What does the advocate-general's opinion mean for patenting of resarch?
EU research programmes have supported the generation of a significant body of knowledge on human embryonic stem cells. Yet, if the European Court of Justice accepts the recent advice of the advocate-general, it will not be possible to protect this knowledge with patents. Patents already granted by the European Patent Office (EPO) will no longer be effective. This is in contrast to the situation in other parts of the world, notably the USA. EU national law will be overruled by the Court’s decision and knowledge generated by European research projects will be freely available to industry worldwide: the EU pays, while the rest of the world potentially benefits.

Why are patents important for research?
 Removal of patents would have a significant impact on the European research and biotechnology sectors. The involvement of industry is vitally important for many researchers, universities and funding agencies if their findings are to be translated into applications such as therapies. Without patent protection, researchers will have to make difficult strategic decisions about whether research should be published in peer-reviewed journals or licensed to industry. “Licensing” usually means that payments are made to inventors for knowledge or techniques which are protected by patents. Patents are only valid if they are filed before the knowledge becomes public, for example through publication in a scientific journal. So patenting gives universities a way to generate income to fund more research and ultimately enable industry to produce therapeutics that can be prescribed to patients. Most universities still measure the success of their researches based on publications in peer-reviewed journals, so most scientists would choose to publish their work rather than file a patent if the patenting process took too long or became impossible. There would then be nothing to license and industry would be unlikely to make the huge investments necessary to bring new therapies to market if in the end anyone else can simply copy the product without investing in the development at all. This will undoubtedly have a negative impact on the translation of knowledge into commercially available applications that could benefit EU citizens.

The absence of patent protection will have a significant impact on another cornerstone of the European Framework Programme: public-private partnerships. Without patent protection, private partners will choose to protect their intellectual property through ‘trade secrets’. It will be unnecessarily difficult for private partners to disclose their fundamental findings to their public counterparts (academic researchers). This will limit further innovation and slow down the progress of research.

What does this mean for European citizens?
If the European Court of Justice adopts the advocate-general’s advice, the technology generated in European stem cell research laboratories will not be protected by patents that would stand up to challenge. In principle European-generated knowledge could be freely available to all, which may mean that European citizens are not able to benefit from research the EU has funded. Instead, therapies will be developed in other parts of the world, where industry partners can protect their investment with patents. This seems counter-intuitive to one of the aims of the EU Framework Programmes: generation of economic value for Europe. If, however, the more liberal European Patent Office standpoint were adopted and methods associated with human embryonic stem cell applications could be patented (as they can now), without requiring the use of new embryos, then the biotech industry, researchers and the European public could benefit alike.

Related content
European Advocate General critical of stem cell patents - news item on Advocate General's recommendation (10 March 2011)
Stem cell patent case could have wide-ranging impact on European research - open letter from 13 senior scientists