Good news for stem cell patents in German Brüstle ruling

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Good news for stem cell patents in German Brüstle ruling

One year after the Court of Justice of the EU limited the stem cell research that can be protected by patents in Brüstle, the German Federal Court has ruled in the original case

In October 2011, Europe's highest court decided that a process that involves removal of a stem cell from a human embryo at the blastocyst stage, entailing the destruction of that embryo, cannot be patented.

It was ruling in a case referred to it by a German court, which asked the judges in Luxembourg to decide what is meant by the term "human embryos" in Article 6(2) of the directive on the legal protection of biotechnological inventions. In particular, it wanted to know whether the term embryo included all stages from the fertilisation of the ovum. It also asked what is meant by the expression "uses of human embryos for industrial or commercial purposes".

The case stems from a challenge launched by environmental campaign group Greenpeace against an application filed by research scientist Oliver Brüstle in 1997. The application related to his research work on isolated and purified neural precursor cells produced from human embryonic stem cells used to treat neurological diseases. Greenpeace claimed the patent was invalid because it covers processes for obtaining precursor cells from human embryonic stem cells.

Following the ruling of the Court of Justice of the EU, it was left to the German courts to decide on the patentability of Brüstle's work.

On Tuesday, the country's Federal Court of Justice ruled that Brüstle's patent DE19756864 could be maintained in amended form, overruling the German Patent Court's finding of partial invalidity at first instance.

In particular, the Court said it was satisfied that a general disclaimer excluding the destruction of human embryos would render inventions relating to human embryonic stem cells patentable.

Paul Chapman of Marks & Clerk described the ruling as "good news for bio-medical researchers worldwide".

"According to the German Federal Court, because stem cells do not have by themselves the capability to initiate the process of developing into a human being, they cannot be treated as human embryos per se. This means that, save when stem cells are harvested by destroying human embryos, cells derived from human embryonic stem cells can be patented."

He added that the decision could prompt the EPO and the UK IPO to consider revising restrictive guidelines they drew up in the wake of the Court of Justice's decision that banned patents on stem cells derived from blastocysts altogether.

more from across site and SHARED ros bottom lb

More from across our site

A team from Addleshaw Goddard secured victory for the changing robe brand, following a trial against competitor D-Robe
Bird & Bird, Brinkhof and Bardehle Pagenberg were successful at the Court of Appeal, while there was a partial victory for Amazon in a case concerning audio recordings
Following the anniversary of Venner Shipley and AA Thornton's merger, Ian Gill recalls the initial trepidation about working for his spouse and offers tips for those who may find their personal and professional worlds colliding
Two partners have departed DLA Piper to join Squire Patton Boggs and Blank Rome in San Francisco and Chicago, respectively
Practitioners say a 32% rise in court fees is somewhat expected to maintain the UPC’s strong start, but some warn that SME clients could be squeezed out
Swati Sharma and Revanta Mathur at Cyril Amarchand Mangaldas explain how they overcame IP office objections to secure victory for a tyre manufacturer
Claudiu Feraru, founder of Feraru IP, discusses the benefits of a varied IP practice and why junior practitioners should learn from every case
In the ninth episode of a podcast series celebrating the tenth anniversary of IP Inclusive, we discuss IP & ME, a community focused on ethnic minority IP professionals
Firms that made strategic PTAB hires say that insider expertise is becoming more valuable in the wake of USPTO changes
Aled Richards-Jones, a litigator and qualified barrister, is the fourth partner to join the firm’s growing patent litigation team this year
Gift this article