Home -> Law Blog Directory -> Intellectual Property Law Blogs -> IPKat

Intellectual Property Law

: IPKat

What is a human embryo? Answers, please, by 10 March ...

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

Thanks go to fellow blogger Hugo Cox for drawing the IPKat's attention to this note on the UK's IPO website concerning a reference to the European Court of Justice in Case C- 34/10 Oliver Brüstle v Greenpeace e.V. This case seeks a preliminary ruling on the following questions:

"1. What is meant by the term 'human embryos' in Article 6(2)(c) of Directive 98/44/EC [on the Legal Protection of Biotechnological Inventions]?

(a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

(b) Are the following organisms also included:

1. unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

2. unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

(c) Are stem cells obtained from human embryos at the blastocyst stage also included?

2. What is meant by the expression 'uses of human embryos for industrial or commercial purposes'? Does it include any commercial exploitation within the meaning of Article 6(1) of the Directive, especially use for the purposes of scientific research?

3. Is technical teaching to be considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching,

(a) because the patent concerns a product whose production necessitates the prior destruction of human embryos,

(b) or because the patent concerns a process for which such a product is needed as base material?"

The IPKat notes two things with some concern. One is that anyone who wishes to comment on this to the IPO has only till 10 March to do so (please email the IPO at policy@ipo.gsi.gov.uk). Secondly, try as he may, this member of the team has been unable to locate this reference on the Curia website, having tried accessing it by case number and by the names of the parties.

Full post as published by IPKat on March 05, 2010 (boomark / email).