earticle

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The researches on human embryonic stem cells(hESC) which are carried out by many developed countries in this area including the U.S., west european countries, Japan etc. are aiming for treatment of neural diseases such as Alzheimer's disease, cancer. However, patent protection on hESC brings an issue on bioethics, in which the matter is from which stage of development after fertilization embryo is regarded as a human being, because it generally originates from destruction of human embryo if stem cells are derived from the embryo. The Directive 98/44/EC on legal protection of biotechnological invention as to including matters on biotechnological inventions in Europe does not have any definition on what is ‘human embryo’. Therefore, there have been many disputes on the correct meaning of what is embryo as well as what is use of human embryos for industrial or commercial purposes according to Rule 28 of Implementing Regulation to the EPC(European Patent Convention). In this regard, the Brstle v. Greenpeace case of European Court of Justice in 2012 has an important meaning. This case shows what is embryo, which is broadly interpreted than ever. Following the purpose of this case, the UK Intellectual Property Office has revised the Practice Notices in 2012, and published the Examination Guidelines for Patent Applications relating to Biotechnological Inventions in 2013. In addition, German Federal Supreme Court has made a decision on Brüstle case in 2012, in which the human embryo appears to be interpreted narrower than the ECJ. In the future, it is anxious how both ECJ’s judgment and German Federal Supreme Court(BGH)’s judgment on Brüstle case are influenced upon European Patent Office as well as other european countries’ courts. It is meaningful for us to compare and analyze the interpretations of ECJ and BGH on patentability of human embryonic stem cells in Europe.