CJEU Delivers Verdict on Patentability of Stem Cells - but uncertainty still remains for some

At present, it is possible to obtain patents for pluripotent stem cells and associated processes, both before the European Patent Office and the UKIPO as long as the inventions claimed make use of so-called "existing human embryonic stem cell lines", even though the cell lines were themselves established by processes that necessarily involved the destruction of embryonic material in the past.  The UKIPO currently has in the region of 200 pending applications for this subject matter and there are thought to be as many as 100 granted UK patents. Opponents to stem cell patenting have long regarded this as a loophole in the law.

On the 18th October the CJEU handed down a judgment that some commentators have been quick to say closes this "loophole".  In the judgment the following words appear;

"...Article 6(2)(c) of the Directive excludes 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"

On the basis of this and in particular the words, "...whatever the stage at which that takes place..." the view has been expressed in many press articles currently circulating that the "loophole" has closed.  It has also been said, however, that if it had been the intention of the judges of the CJEU to explicitly prohibit from patentability stem cell inventions resulting from existing cell lines, why didn't they just say so? Observers of the UKIPO website will have noted that at time of writing no change has taken place to the Practice Note of February 2009 that established the Office's current practice.  Furthermore, a UKIPO official confirmed today that the office has sought legal advice on the effects of this judgment on UK patent practice