Totipotent cells, which carry within them the potential to evolve into complete human beings, are human embryos and therefore not patentable, according to an Advocate General’s Opinion.
Totipotent cells, which carry within them the potential to evolve into complete human beings, are human embryos and therefore not patentable, according to an Advocate General’s Opinion.
Neither can a procedure using other embryonic stem cells, known as pluripotent cells, be patented where it first requires the destruction or modification of the embryo, Advocate General Yves Bot said.
Brüstle v Greenpeace eV (C-34/10) concerned a patent held by Mr Brüstle for a stem cell treatment for neural defects, which was being developed to help patients suffering from Parkinson’s disease.
Interpreting Directive 98/44/EC, the “Biotech Directive”, Bot said totipotent cells must be legally classified as embryos since they appeared after fusion of the gametes and therefore had the capacity of developing into fully formed human beings.
While pluripotent cells lacked this capacity, they could not be patentable if they were obtained through the destruction or modification of an embryo.
However, Bot said that uses of human embryos for industrial or commercial purposes could be allowed where these were therapeutic or useful to the human embryo, for example, to correct a malformation and ensure its survival.
