Setting the Background

A Quest to Prohibit Immoral Inventions? An Analysis of Law and Policy in Human Biotechnology

“…As opposed to the generality of the prohibitions in Article 53(a), the patentability of certain human biotechnology inventions is specifically addressed in Rule 28 EPC [9] . Using human embryos for industrial or commercial purpose is considered immoral under Rule 28(c) EPC, given the fact that is directly linked to the morality clause in Article 53(a) EPC.…”

“…Therefore, in the ISCO case, judges of the CJEU held that the Brüstle classification of human embryos was disconnected and out of touch with current scientific knowledge and was effectively in need of modernization. An unfertilized human ovum stimulated by parthenogenesis does not have the inherent ability to grow into a human being [12] . Although the patentability test, predicated on the definition of "human embryo" in the ISCO case is based on whether it has the ability to develop into a human being, it is difficult to apply the same logic to other biotechnology inventions, such as SCNT.…”

“…In addition to defining the concept of "human embryo," the CJEU has endorsed the reasoning of the EPO's decisions on inventions that use human embryos and the requirement in such cases to meet requirements of morality and "order public [12] ." The first important judgment on the patentability of this type of invention was the Wisconsin Alumni Research Institute (WARF) case [13] .…”