Official Journal of the European Union

C 362/5

(Case C-34/10) (<span class="super">1</span>)

(Directive 98/44/EC - Article 6(2)(c) - Legal protection of biotechnological inventions - Extraction of precursor cells from human embryonic stem cells - Patentability - Exclusion of ‘uses of human embryos for industrial or commercial purposes’ - Concepts of ‘human embryo’ and ‘use for industrial or commercial purposes’)

2011/C 362/07

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Oliver Brüstle

Defendant: Greenpeace e.V.

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 6(1) and (2)(c) of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions (OJ 1998 L 213, p. 13) — Extraction, for the purposes of scientific research, of precursor cells from human embryonic stem cells taken from a blastocyst, which is no longer capable of developing into a human being — Exclusion from patentability of that process as ‘use of human embryos for industrial or commercial purposes’? — Concept of ‘human embryos’ and ‘uses for industrial or commercial purposes’

Operative part of the judgment

Article 6(2)(c) of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions must be interpreted as meaning that:

—any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis constitute a ‘human embryo’;

—it is for the referring court to ascertain, in the light of scientific developments, whether a stem cell obtained from a human embryo at the blastocyst stage constitutes a ‘human embryo’ within the meaning of Article 6(2)(c) of Directive 98/44.

The exclusion from patentability concerning the use of human embryos for industrial or commercial purposes set out in Article 6(2)(c) of Directive 98/44 also covers the use of human embryos for purposes of scientific research, only use for therapeutic or diagnostic purposes which is applied to the human embryo and is useful to it being patentable.

Article 6(2)(c) of Directive 98/44 excludes an invention from patentability where the technical teaching which is the subject-matter of the patent application requires the prior destruction of human embryos or their use as base material, whatever the stage at which that takes place and even if the description of the technical teaching claimed does not refer to the use of human embryos.

(<span class="note">1</span>) OJ C 100, 17.4.2010.