Clara Sattler de Sousa e Brito
Biopatenting: “Angst” v European Harmonization – The ECJ Decision on Stem Cell Patents
|European Journal of Risk Regulation 1/2012: pp. 130-134 |
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Case C-34/10 Brüstle v. Greenpeace
1. Article 6(2)(c) of Directive 98/44/EC of the European Parliament and of the Council of 6
July 1998 on the legal protection of biotechnological inventions must be interpreted as
– any human ovum after fertilisation, any non-fertilised human ovum into which the
cell nucleus from a mature human cell has been transplanted, and any non-fertilised
human ovum whose division and further development have been stimulated by parthenogenesis
constitute a ‘human embryo’;
– it is for the referring court to ascertain, in the light of scientific developments, whether
a stem cell obtained from a human embryo at the blastocyst stage constitutes a
‘human embryo’ within the meaning of Article 6(2)(c) of Directive 98/44.
2. The exclusion from patentability concerning the use of human embryos for industrial
or commercial purposes set out in Article 6(2)(c) of Directive 98/44 also covers the use of
human embryos for purposes of scientific research, only use for therapeutic or diagnostic
purposes which is applied to the human embryo and is useful to it being patentable.
3. Article 6(2)(c) of Directive 98/44 excludes an invention from patentability where the
technical teaching which is the subject-matter of the patent application requires the
prior destruction of human embryos or their use as base material, whatever the stage
at which that takes place and even if the description of the technical teaching claimed
does not refer to the use of human embryos.
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Brussels - Living amongst Eurocrats
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