Patent: Stem Cell Patent Debate Never Dies

 This post was published on May 2, 2011.
The debate with respect to genetic and stem cell patents is alive with the European Court of Justice’s (ECJ) preliminary opinion in March. As per the opinion, embryonic stem cells are not patentable because use of totipotent stem cells amounts to use of human embryo for industrial or commercial purposes. As totipotent stem cells can develop into a human being and are derived from an embryo, they as per the opinion can be considered to be human embryo or based on manipulation of human embryo. This opinion was an interpretation of Article 6(2) of the Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, which prohibits patents that relate to industrial or commercial use of human embryos as that would be against public order and morality.While the final decision is expected in May, many scientists, attorneys and scholars have raised concerns with respect to the preliminary opinion. They argue that acquisition of stem cells and their development in the lab does not amount to destruction or use of an embryo. Deriving embryonic stem cells from sources such as human embryos, produced by in vitro fertilization, aborted fetuses, and asexually produced human embryos are not considered by scientists to be immoral or against public order because they are very valuable for developing treatments for many life threatening diseases. According to them, preventing patents on such stem cells would hurt progress of research, thereby preventing or slowing down treatments for dangerous diseases.In India, stem cells are considered patentable and many patents have been granted on stem cells. The Patents Act does not have any specific prohibition against grant of patents over stem cells. Though the draft manual of 2008 stated that embryonic stem cell patents are against public order and morality, the latest Manual published in 2011 does not mention anything about stem cell patentability. In the absence of any jurisprudence on the matter, embryonic stem cells can be considered to be patentable in India. Having said that, I am positive that the debate come to life in India when an embryonic stem cell patent goes to court.Authored by Dr. Kalyan Kankanala C.
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