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Life begins at conception

EU Advocate General proposes to include all stages in the development of the human body in the Biotech Directive’s prohibition on the patentability of human embryos.

The Biotech Directive from 1998 harmonises the patentability requirements for biotechnological inventions in all EU countries. Among other things, the Directive provides that uses of human embryos for industrial or commercial purposes are not patentable.
But there is no actual definition in the Directive of what exactly a human embryo is. The EU Court has therefore been asked to consider a case from Germany about a patent on the use of stem cells from a very early embryonic development stage.
Protection covers all stages
One of the Court’s Advocates General has now given his opinion on how the Court should rule in the case. He proposes that the term 'human embryos' should cover all stages of the development of a human body and that this development begins already at conception.
The Advocate General further proposes that all totipotent cells should be excluded from patentability because each of these cells is capable of developing into a human body. Pluripotent cells are not capable of doing so and they should therefore not be excluded from patentability as such – in principle.
In his view, however, isolated pluripotent cells should be excluded from patentability as well, if they are obtained to the detriment of the human embryo.
Norrbom Vinding notes:
  • that it will result in a very wide-ranging prohibition on the patentability of stem cell-related inventions in Europe if the EU Court decides to follow the opinion of the Advocate General; and

  • that many existing patents which involve the use of pluripotent cells in particular may be held invalid if the EU Court decides to follow the opinion of the Advocate General.
Norrbom Vinding will follow developments closely.
The above does not constitute legal advice and should not be relied upon as such

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