by Peter Dunne
On October 18, 2011, the European Court of Justice (the European Union’s court of final instance on Treaty matters) handed down a ruling which prohibits the granting of patents, in all twenty-seven member states, for research involving the destruction of an embryo.
The case arose out of an attempt by German scientist Oliver Brüstle to file a national patent for his technique for turning embryonic stem cells into nerve cells. The application was opposed by Greenpeace on the basis that it would promote “the commercialization of the Human Body.”
In its decision, the ECJ stated that while techniques which assist the development of embryos can be protected under law, the same does not apply for research which involves the destruction of embryos. Article 6(2)(c) of Directive 98/44/EC prevents the issuing of a patent which could affect “respect for human dignity.” Harvesting embryos for the sole purpose of scientific advancement does not respect human life, according to the Court.
In less than seven days, the judgment in Brüstle has sent shock waves across the legal, academic and medical communities in Europe. Many liberal advocates fear that the traditionally progressive EU is moving towards a jurisprudence in which life is defined as beginning at conception. Although the ECJ has little control over social legislation, the case could mark a change in the type of reproductive health services EU citizens are entitled to access when they travel abroad. The alignment of environmental and religious arguments in this case, and the apparent subsumption of the former by the latter, is also a source of worry. But the most immediate concern is that Brüstle will now stifle the development of stem cell practices in Europe. Unable to derive any financial gain from European research, large corporations will likely move funding to jurisdictions which still offer legal protection.
It is for this reason that lawyers and researchers in the United States should be aware of the decision. While stem cell research, particularly its potential federal funding, remains a sensitive issue in the States, America now has a real chance to compete with and overtake countries such as the United Kingdom, where government regulation has traditionally been more research-friendly. As patent lawyer and blogger Kevin E. Noonan writes:
Europe once before took the “moral” position against patenting a particular technology, namely biotechnology, 30 years ago. As a result, the rest of the world (predominantly the U.S.) was able to develop this technology without European competition, and companies such as Amgen, Genentech, Biogen, and many others became world leaders in translating the fruits of the biotech revolution into commercial products that improved the lives of millions. Stem cells now provide another opportunity for countries outside of Europe to take (or maintain) the lead in a new technology, regenerative medicine, that has the promise of being just as revolutionary and to provide just as dramatic an improvement in human welfare.