Germany: Courts Limit Embryonic Stem Cell Patents

Bioethics   |   Rebecca Taylor   |   Dec 3, 2012   |   11:13AM   |   Berlin, Germany

The complicated case of the patenting of discoveries using embryonic stem cells in Europe is full of irony, surprise and confusion.

It began with German embryonic stem cell researcher Oliver Brüstle who applied for a patent on his method of deriving neural precursor cells from embryonic stem cells. In Germany, research on embryos is banned, so Dr. Brustle fought for grant money to work on embryonic stem cells imported from other countries. As reported by Nature, Dr. Brüstle says his is Catholic:

Brüstle, who is a practising Catholic, had thought hard about his own moral position. He disagrees with the creation of human embryos specifically for research. But almost all human ES-cell lines have been derived from embryos leftover from fertility treatment that would otherwise have been destroyed. Brüstle maintains that using them for biomedical research rather than discarding them is the moral imperative.

Brüstle, of course, is in direct contradiction to the teachings of the Catholic Church that is very clear that the destruction of any human embryo, even for a proposed good, is immoral. It is not a valid argument that these embryos “are going to die anyway” so we can destroy them for their parts. All of us humans are “going to die anyway.” Not a one of us is going to make it out of life alive. That does not give us license to prematurely end some human lives for harvestable biological material.

Enter the irony. The “Catholic” scientist who tried to patent a technique using embryonic stem cells was challenged by none other than Greenpeace. Greenpeace in Germany is opposed to the patenting and ownership of products of nature, so they challenged Brüstle’s patent.

The case was placed before the European Court of Justice (ECJ) who ruled in favor of Greenpeace. In a surprise decision, the court ruled that human life begins at conception. And because no patent can be awarded to immoral practices, they ruled that embryonic stem cell research was non-patentable because it involved the destruction of human embryos, which they found to be immoral.

Nature reported Brüstle response to the ruling:

It took barely two minutes for the court’s president to summarize aloud the four pages of the judgment. The ruling, which cannot be appealed, upheld Greenpeace’s position. It declared that any patent depending even indirectly on human ES-cell lines is outlawed on moral grounds throughout the European Union (EU). Unexpectedly, it added that any research using such cell lines was similarly immoral.

For a few moments Brüstle was so shocked he could barely draw breath. Outside, the clouds burst and rain poured down. “What hurt most personally was the accusation that scientists who work on human ES-cell lines are somehow immoral,” says Brüstle, who says he never doubted that he would win the case.

So not only was his Church telling Brüstle that his research was immoral, but the European Court of Justice was as well.

This ruling was not only surprising but a significant victory in the fight against embryo-destructive research because it applied to all of the European Union. All of a sudden, the profitability of research involving the destruction of embryos was questionable forcing researchers to consider alternatives. The UK’s Guardian explains the impact:

The court’s controversial decision, which determined that any invention is unpatentable if it necessitates the destruction of a human embryo, regardless of when that took place, has served to accelerate the search for these new methods. When the decision came, research scientists realised that all work involving embryonic human stem cells had been rendered commercially worthless and was therefore at risk.

“Irony” that Greenpeace was on the right side of the case and the “Catholic” scientist was not. “Surprise” that the European Court of Justice was clear about what all pro-lifers have always known, research that requires the destruction of innocent human life, not matter how small and immature, is immoral and profiting from such immorality is something society cannot condone.

Here comes the confusion, at least for me. A German court last week upheld the ECJ ruling that discoveries using embryonic stem cells that come from the destruction of human embryos are indeed unpatentable. But they gave Brüstle his patent anyway. DW reports:

Some German scientists want to patent the results and developments they have invented through their stem cell research, and the Federal Court of Justice (BGH) pronounced a verdict on this legal question on Tuesday (27.11.2012). The court made clear that no patents may be issued on stem cell research if human embryos have been killed in the process. With that verdict, the court put itself in line with a ruling made by the European Court of Justice (ECJ) in 2011.

But the court did allow patents resulting from research on cell-lines taken from embryos which were no longer capable of further development or which were created using any other method in which embryos did not have to be destroyed. And it ruled that embryonic stem cells could not be considered to have the same rights as embryos.

As a result of those findings, it approved a patent application by the Bonn-based researcher Oliver Brüstle on a procedure by which so-called “neural precursor cells” could be extracted from stem cells.

I suppose this implies that somehow the embryonic stem cells Brüstle works with satisfies one of those conditions but the article does not clarify that point.



I am not the only one who is perplexed. J.C. von Krempach, J.D., writing for Turtle Bay and Beyond, asks:

In its final judgment, the BGH has seemingly made a concession to Mr. Brüstle: it does not generally prohibit the patenting of inventions involving the use of embryonic stem cells, but only the patenting of inventions involving the use of stem cells that have been obtained through the destruction of a human embryo. The reasoning of the Court is that stem cells are not embryos, as they have no potential of developing into a full human being.

Is this just a new hypocrisy? An attempt to circumvent the clear limits that are set by the EU Biopatent Directive? Does this judgment mean that it would now be possible to obtain a patent on any invention that involves the use of embryonic stem cells, as long as there is no mention that the obtention of those stem cells involves the destruction of human embryos?

So it seems that the court will allow the patenting of techniques using embryonic stem cells, but not techniques with stem cells taken by the destruction of a human embryo. In most cases, are they not one in the same? Color me confused.

I guess we will have to watch the fallout of this decision closely to discover exactly what the German court ruling means for embryonic stem cell research in Germany and all of Europe.