European Advocate General critical of stem cell patents

The Advocate General of the European Court of Justice has today given his recommendation for a ruling on a long-running legal battle over patenting of a technique that uses embryonic stem cells. His comments point towards a complete prohibition of patents for inventions relating to embryonic stem cells.

The case arises from a patent granted in 1999 to Professor Oliver Bruestle of the University of Bonn, Germany, for a method of producing neural progenitor cells (precursors of nerve cells) from so-called ‘embryonic stem cell lines’. Many European countries allow embryonic stem cells to be obtained from the large numbers of surplus embryos produced during fertility treatment. The cells can be grown and multiplied in the lab to give ‘cell lines’ that are able to produce an almost infinite number of embryonic stem cells. Several hundred such cell lines are now available to researchers worldwide.

Professor Bruestle’s patent was challenged by Greenpeace in 2004. In 2006, the German Federal Patent Court referred the dispute to the European Court of Justice. According to today’s statement from Advocate General Yves Bot, the fact that embryonic cell lines are originally derived from fertilized human eggs means patents cannot be granted for techniques that involve the use of embryonic stem cells. Bot made clear that embryonic stem cells are not equivalent to embryos in the eyes of the law, but he nevertheless took a restrictive position on patenting.

Professor Bruestle, Director of the Institute for Reconstructive Neurology at the University of Bonn, expressed surprise and concern about this latest development. He fears that a court ruling in line with the Advocate General’s opinion would seriously damage the development of stem-cell-based medicine in Europe. Bruestle says, “The Advocate General has taken a more restrictive view than the European Commission or any of the European Member States that have taken a position on this issue. No-one in Great Britain or Sweden would think of questioning a patent of this kind.”

Indeed, some countries which have in the past taken a more restrictive view of embryonic stem cell research, such as Portugal and Ireland, have argued against a blanket prohibition of patents for inventions that use existing embryonic stem cell lines.

The Advocate General’s statement is not legally binding. Members of the court will now discuss the case before taking a final vote on the verdict. Professor Bruestle comments, “One wonders why the EU spends millions of Euros supporting the development of therapies based on embryonic stem cells, if practical progress towards the clinic is to be blocked by patenting restrictions. While stem cell technologies are already beginning to reach patients in the US and Asia, we are still discussing policy issues and wasting Europe’s valuable competitive edge."

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