Patents and Venus: About Oocytes and Human Embryonic Stem Cells

Abstract:     
In the last decade patent law has been in turmoil and has been seriously criticized. At present, serious concerns are being raised with regard to human embryonic stem cells and oocytes. Are the arguments put forward against patents for human genes similar to the objections raised against patents for human stem cells? Do human genes, human stem cells and human oocytes have a similar status in patent law? What are the legal claims and underlying ethical values put forward to argue in favour or against patent protection? The present paper aims at offering an answer to these delicate and intriguing questions.

The paper is divided in three parts. Part 1 examines the state of play with regard to the patentability of oocytes from a twofold perspective. First, an overview of the daily patent granting practice in Europe and the US in this field is composed. Next, European patent legislation is carefully examined. Part 2 explores the patent regime for human embryonic stem cells and does so through a twofold lens as well. First, an updated survey of the European and US patent practices with regard to human stem cell technology in general, and human embryonic stem cells in particular is drafted. Then an overview of the current European patent framework for human stem cells is offered. In an effort to clarify the legal situation and the arguments put forward for and against patenting, the paper critically examines the recommendations laid down in the Opinion of the European Group on Ethics in Science and New Technologies (EGE). Part 3 looks into additional conditions for patenting human embryonic stem cells and examines the enforceability and scope of the prior informed consent requirement in a patent law context. The paper concludes that patents related to human oocytes and human embryonic stem cells are more easily granted in the US than in Europe. Along the same line, European legislation demonstrates a wide reluctance towards the patenting of human embryonic stem cells and oocytes. Appropriation of the female body through patents is considered unacceptable in Europe. Patents and Venus seem to be pretty incompatible.

Number of Pages in PDF File: 17

Keywords: Patents, Human oocytes, Human embryonic stem cells, Cloning methods, Somatic cell nuclear transfer (SCNT), European Patent Convention, EU Biotechnology Directive, Patent statistics, Granting policy European Patent Office (EPO) and United States Patent Office (USPTO), Informed consent

JEL Classification: D23, D45, H 41, H51, I18, K11, L14, L 65, O13, O31, O32, O34

Accepted Paper Series