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Brüstle patent holds up in Germany

Nature Biotechnology volume 31, page 94 (2013)Cite this article

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In Europe, the German Federal Court of Justice gave a final verdict on November 27 in the Greenpeace vs. Brüstle case, indicating that the contested Oliver Brüstle patent, which covers technology for extracting human embryonic stem cells (hESCs) at the blastocyst stage, was valid. The decision follows a controversial judgment by the Court of Justice of the European Union (CJEU) in October 2011 (Nat. Biotechnol. 29, 1057–1059, 2011), stating that stem cell processes based on the use of embryos are not patentable, which caused considerable outcry in the biotech community. Critically, however, the CJEU ruling only covered the patentability of technologies describing hESCs derived by means of embryo destruction; decisions on the patentability of hESC technologies that derive cells at the blastocyst stage were delegated to the national courts, prompting the recent German federal court case.

Julian Hitchcock, counsel at the law firm Lawford Davies Denoon in London, believes the recent ruling points to a more liberal regime, in Germany at least. “All other things aside, if you didn't destroy an embryo it should be possible to get a patent,” Hitchcock says. This should encourage investors who were deterred by the CJEU ruling. “Given the very small amount of discretion that was given to the German court by the CJEU, it has been exercised in a favorable way.” Paul Chapman, partner at the London law firm Marks & Clerk agreed that “those who want to protect inventions relating to human embryonic stem cells in Europe now have a glimmer of hope.”

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    Nuala Moran

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Moran, N. Brüstle patent holds up in Germany. Nat Biotechnol 31, 94 (2013). https://doi.org/10.1038/nbt0213-94b

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