Germany rules against stem cell patents

Germany rules against stem cell patents

Should patents on the products of embryonic stem cell research be allowed? The European Court of Justice said no, but the question remained unanswered in Germany - until now.

The German constitution, called the Basic Law, guarantees the freedom of research. It also guarantees every human being the right to life. These two principles come into conflict when faced with the matter of human stem cell research. At least, they do if you take the view that life begins at conception rather than birth, because research is done using early-stage embryos, or more specifically the stem cells extracted from them. The embryos die during this process - though technology is being developed to prevent this.

The German parliament, the Bundestag, has introduced a law that places strict limits on this research. For instance, scientists can only use stem cell lines that were imported before May 1, 2007, a restriction meant to hinder the production of stem cells, and therefore the death of embryos, as a result of demand from Germany.

Oliver Brüstle took out a patent on a stem cell procedure

Patent rows

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.

In 1999, Bonn-based researcher Oliver Brüstle took out a patent from the German Patent Office on a procedure by which so-called "neural precursor cells" can be extracted from stem cells. It was mainly a financial decision.

"The patent does not constitute permission to produce or sell, and it doesn't constitute permission to destroy embryos either," Tade Matthias Spranger, a lawyer specializing in bio-medical regulation, told Deutsche Welle. "The patent only bestows a single right - namely the inventor's right to deny commercial use to a third party."

European court's fundamental ruling

The environmental organization Greenpeace successfully challenged Brüstle's patent at the federal patent court in 2004, on the grounds of violation of moral principles. But Brüstle appealed, which brought the case before the BGH.

At first, the BGH referred the case to the ECJ in Luxembourg, to clarify the European law's interpretation, since there is an EU directive on patent law for stem cell research. This directive states that no patents may be issued for inventions whose commercial use would violate moral principles. This is especially true of the use of human embryos for industrial or commercial purposes. In an October 2011 ruling, the ECJ made clear that any product of research into human stem cells cannot be patented, if the embryos have to be killed for it.

The ruling will not impede scientific research, say some

No disadvantage to science

But in contrast to the question of patentability, there is no uniformity in Europe on the general legal stance on stem cell research. Britain, Sweden, and Belgium have very liberal rules - the UK even allows the production of human embryos for research purposes, under certain conditions. But the laws are much stricter in Germany, Norway, and Italy.

This patchwork of different legal situations has arisen because the legislative power on stem cell research lies in the hands of nation states. The EU has generally kept out of the debate up until now, and the latest German ruling will not change that.

Ingrid Schneider, political scientist specializing in the patenting of biotechnology at the University of Hamburg, does not believe that science has been weakened by this verdict. "It doesn't limit the freedom to research," she said. In fact, there could even be benefits for science: "The researchers don't have to make sure they are not violating any patents - they have the freedom to form their research."

DW.DE