The following is excerpted from an October 27, 2011 Jones Day Commentary by Niklas Piening, Christian Paul and Martin Weber:
In a landmark decision on October 18, 2011, the highest court of the European Union—the Court of Justice—decided on the patentability of stem-cell-related inventions (case number C-34/10). The dispute arose around the definition of the term "human embryo" in the European Biotechnology Directive. Based upon this decision, the Court will now apply a very broad definition, which will result in nonpatentability and invalidity of many stem-cell-related inventions in Europe. The impact on biotechnology and life sciences innovator companies will be significant.
According to the Court, the definition shall include the fertilized human ovum. Reaching even further, the term shall also include artificial cell types including the ones obtained by cell nucleus transfer from a mature human cell into a nonfertilized human ovum. This technology was used to obtain the clone sheep "Dolly," for instance.
The Court of Justice further ruled that not only is any such—broadly defined—human embryo unpatentable, but also that every invention that requires the prior destruction of a human embryo shall not be the subject of a patent. This also applies to inventions using stem cell lines that resulted from the destruction of a human embryo long before the cell line was employed for the invention.
Read the full commentary here.