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STEM CELLS


A case before the Court of Justice for the European Union threatens to radically redraw the patent landscape for embryonic stem cells. Ashley Roughton explains.


Our European patent system is self-financing, self-sufficient and almost self-legislating. It works on two, intertwined levels. It is complex, has its own courts, and perhaps, some may say, the very last thing we need is further legislative interest by a body that, until recently, has had little to do with patenting in Europe. Yet this is what the European Council and Parliament did when trying to legislate for patents and morality in 1998 via Directive 98/44/EC on the legal protection of biotechnological inventions—the Biotech Directive. It says much, but principal amongst its objects is to somehow enforce morality; patents must not be immoral, so the Biotech Directive tells us. Oh yes, and you cannot actually patent the human body “at the various stages of its formation and development”. Tat, for most of us, is what it took eight pages of directive to tell us. Morality includes not being able to patent uses of human embryos for industrial or commercial purposes.


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Tis human body objection is not really an objection at all. You never could patent a discovery, so it seems that patent law, in this respect at least, is being restated. It is the latter prohibition—patents shall not monopolise uses of human embryos—that causes more comment.


Tere is undoubtedly a case for saying that science should not do certain things. Two questions arise: what should science not do and who should decide? Tese questions are of supreme importance and a few observations may be made about them. Te first is that where monopolies are conferred, it is generally a bad thing; though when thought about and talked about as part of some democratic process, it can be a good thing. Te second is that whatever science is or is not allowed to do, it is related, but only in part, to the question of what scientists are allowed to patent. It follows that scientists will not necessarily be put off from research simply because they


Life Sciences Intellectual Property Review 2011 81


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