Germany's Federal Court of Justice (BGH) in Karlsruhe concluded that it is not in a position to decide on the patent issue after a one-day hearing to consider an appeal by Oliver Bruestle against the German Federal Patent Court. The decision will now pass to the European Court of Justice.

In 2006, the Patent Court partially rescinded a 1999 patent for the scientist's method of creating nerve cells from embryonic stem cells.

During the hearing on Thursday, November 12, the BGH's presiding judge Peter Meier-Beck pointed out that Bruestle's research methods did not break German law.

However, the BGH will now leave it to the European Court to provide the legal parameters on two key issues: the definition of a human embryo and whether every professional use of embryos that is consistent with the 1999 patent counts as “industrial or commercial use” of embryos.

The German Federal Patent Court ruled to partially reverse the 1999 patent after a challenge from the environmental activist group Greenpeace, which has welcomed the move to provide clearer legal guidelines regarding embryos.

The court said that anything culled from embryonic stem cells could not be patented, as it necessarily involved the destruction of human embryos.

Ethical minefield

Research on embryonic stem cells is allowed in Germany, though the production of stem cell lines is banned. Scientists are only allowed access to lines imported before May 2007.

If the earlier court's ruling is upheld, this would mean that German embryonic stem cell research could continue, but would not be protected by patents.

"For German scientists, this means that their inventions could be picked up by foreign firms and, at the end of the day, also be used in Germany," Bruestle, professor of reconstructive neurobiology at Bonn University, told the German news magazine Spiegel.

He described as "bizarre" the fact that his research is approved and funded by the state, and that he even has to prove that he is making an effort to apply for patent protection. "However, if I get my results patented, that is regarded as immoral."

The scientist wants to use his procedure to help find cures for diseases such as Alzheimer's and multiple sclerosis.

Concern about cloning

Greenpeace, however, is concerned that the patenting of such research could lead to an "embryo industry."

The organization said that it is less concerned with the issue of stem cells, but with the commercialization of the human body. Greenpeace would like to legally clarify whether embryos are commercial goods.

Greenpeace patent expert Christoph Then told epd news agency that his organization was not concerned about the value of an invention, but its socio-economic effects.

jg/gw/epd/dpa

Editor: Kate Bowen