In October 2011, The Court of Justice of the European Union (CJEU) issued its decision in Brüstle v Greenpeace (C-34/10), which relates to the patentability of technology based on the use of human embryonic stem cells (hESC).

The case related to a German patent granted to neuroscientist Oliver Brüstle in 1999, for a method of turning mammalian ES cells into neurons. Greenpeace filed a nullity action in the Federal Patent Court, arguing that claims to neural precursor cells derived from hESC contravened the morality provisions of German patent law. The German Federal Court of Justice (BGH) referred questions to the CJEU.

Following the ruling of the CJEU, it was then left for the German Courts to decide on the allowability of the original patent.

At the end on November 2012, the German 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 indicated that a general disclaimer excluding the destruction of human embryos could be used to render inventions relating to human embryonic stem cells patentable.

Parallel opposition proceedings were ongoing regarding the corresponding European patent, and parties following the two cases have been awaiting with interest the decision of the European Patent Office (EPO), and hearing their stance on the morality aspects of the claims.

The Opposition hearing on the European case was held last week, where the opposition division of the EPO decided to revoke the European patent. However, the patent was revoked on the grounds of “added matter”, i.e. the claims were considered to contain subject matter not disclosed in the original patent application. The added matter issue relates to the use of the disclaimer regarding the destruction of human embryos which was successfully introduced in the proceedings mentioned above, relating to the German patent.

The EPO has therefore avoided consideration of moral issues surrounding the patentability of inventions relating to human embryonic stem cells.

The Decision of the Opposition Division is open to appeal. If the case goes to appeal and the added matter issue is resolved, the morality issues may be reconsidered, either by the Technical Board of Appeal, or by the Opposition Division (if the case is remitted). However, it is likely to be a matter of years before this takes place.

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Full text of decision: Brüstle v Greenpeace C-34/10