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 2026

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

Cookies Settings

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

Another firm sets up shop in Dallas, bringing its patent disputes capabilities to one of the US’s busiest litigation venues
Entrepreneurial IP lawyers are still launching specialist firms, but increasingly with larger teams, broader coverage and greater infrastructure than the boutique model once implied
Jevon Louis explains how Covid led to a focus on local clients, discusses why mediation is successful in Singapore and reflects on the growing demand for AI advice
An increase in instructions from domestic companies and litigation for international clients are driving success for the Chinese IP firm, according to two lead partners
Ankur Sangal said he wants his team, nearly 30-strong already, to respond to a growing demand for specialist, commercially focused IP advice in a ‘rapidly evolving’ Indian market
As AI adoption accelerates across corporate IP departments, Simon Webster, president of IP at Clarivate, argues that success will depend less on technology alone and more on data quality, workflow design, and organisational readiness
After months of speculation over his next move, former Texas patent judge Alan Albright has found a new home at the firm’s Austin office
Law firms can now participate in the research for the Managing IP Awards and IP STARS rankings
The firm has hired former Norton Rose Fulbright patent prosecution leader Ronak Kalhor-Witzel as it seeks to strengthen its position in high-value technology, UPC and international patent matters
Angela Dunning shares why it’s an exciting time to be practising at the intersection of AI and IP, where the law is actively being made
Gift this article