tag:blogger.com,1999:blog-5574479.post580320600388422355..comments2024-03-28T09:05:22.006+00:00Comments on The IPKat: Stem cells and Patentability: the Brüstle decision issuesVerónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-5574479.post-73280315118269468052011-10-25T19:33:57.997+01:002011-10-25T19:33:57.997+01:00I don't agree. Your view as to what the '...I don't agree. Your view as to what the 'commercial and industrial' limitation is doing there and how it is to be interpreted seems to me entirely unpersuasive. I see the Directive as laying down 'morality' in this area (because the legislators were not ready to leave such important questions to Patent Offices or even Courts). They may not have got this right (some of us think there are even higher authorities than the European Parliament) but they were entitled to try, and the Court is obliged to respect their efforts and not ignore them. I have been asking for at least a decade what sense the limitation made, given that all rational patents are taken out for commercial advantage: and the view of the Court about this seems entirely reasonable.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-59114108376076497682011-10-24T16:48:57.537+01:002011-10-24T16:48:57.537+01:00The key reasoning of the judgment is FAULTY. When ...The key reasoning of the judgment is FAULTY. When extending the commercial or industrial use clause to research and patenting research the Court simply forgot that the commercial or industrial use clause was there in the first place because it was found to be contrary to a COMMON European ethical principles on non-commodification and non-instrumentalisation. By making the irresponsible logical link the ECJ seems to suggest that human embryonic research and patenting the results of human embryonic research automatically violates those principles arising from human dignity. This I think needs proving (a difficult proof indeed), and it needs to be stablished that it is a requirement common to the WHOLE of Europe. If only the Court would learned the Directive properly ....Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-29624658261687354302011-10-19T13:42:56.363+01:002011-10-19T13:42:56.363+01:00Norman, consistency might require member states to...Norman, consistency might require member states to prohibit the COMMERCIAL use of the invention for treating Parkinson’s disease. There is no reason why universities and state institutions could not develop and provide such treatments on a non-commercial basis (albeit without the aid of the patent system).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-33406352400235941042011-10-19T08:07:10.356+01:002011-10-19T08:07:10.356+01:00The way I see it, we now have a CJEU ruling that i...The way I see it, we now have a CJEU ruling that is fairly in line with the EPO (especially WARF/stem cells). The problem remains, of course, that the European and US patent laws do not converge on this matter... Any thoughts on that?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42570783041138095402011-10-18T22:45:42.657+01:002011-10-18T22:45:42.657+01:00Speaking as a non-religious patent attorney, the i...Speaking as a non-religious patent attorney, the issue for me is the use of human embryos in research and/or industry. I personally find this immoral and a line must be drawn that shall not be crossed.<br /><br />As for patenting inventions that rely on the use of embryos, I have no moral problem, provided the application is theoretical. The inherent problem is obviously the requirement for enablement that cannot be met without the experimental work and resultant data.<br /><br />The issue of the exclusion to patenting is not, therefore, one of morality itself, but is merely sensible to mirror the perceived (by the EU) immorality of the commercial exploitation.<br /><br />The ban should also be seen as an opportunity to find non-human-embryonic methods for stem cell production, that can be patented and the commercial explotation thereof protected.<br /><br />If we are going to discuss hypocrisy, can we have the views of those, such as Norman, that are not happy with this particular decision on Article 7(b) of the directive?<br /><br />"processes for modifying the germ line genetic identity of human beings"<br /><br />Just imagine a world of clones without Parkinson's or other terrible diseases. It's about drawing a line.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-47801928995241677392011-10-18T19:48:25.613+01:002011-10-18T19:48:25.613+01:00Norman, it's usually possible to find a low mo...Norman, it's usually possible to find a low motive for a decision you don't like. Personally, I never find such arguments very satisfactory. <br /><br />Most patent attorneys agree that morality is not a good basis for Patent Offices to reject patents. The argument is a largely pragmatic one. Patent examiners are not experts in morality - and views about what is moral differ somewhat between countries as well as changing over time (certainly during the lifetime of a patent).<br /><br />But what is true of patent examiners is not necessarily true of everyone. The Court is there to interpret EU law. This is made by EU organs, including the European Parliament. Not everyone is convinced that these organs have complete legitimacy, but they clearly have a better right to lay down standards of morality than do Patent Offices. The Court, at least, must accept the legitimacy of the laws so made. That being so, the current decision (discouraging though it may be to scientists, investors and those fervently hoping for cures for serious diseases) is a perfectly reasonable and proper interpretation of EU Directive 98/44.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-8224521720078267222011-10-18T15:57:58.084+01:002011-10-18T15:57:58.084+01:00I must say that this whole exclusion looks to me l...I must say that this whole exclusion looks to me like free-riding in the guise of morality, as the result is that member states will have the benefit of such inventions without paying the price. Art 53(a) of the Convention on the Grant of European Patents, quoted by the Court, provides that “European patents shall not be granted in respect of inventions the commercial exploitation of which would be contrary to "ordre public" or morality.” If this is the ultimate basis for the exclusion from patentability, then it seems to me that practicing the invention, not merely patenting it, is equally immoral. For consistency the member states should therefore also prohibit the use of the invention for treating Parkinson’s disease. Unless the member states are willing to do that, the exclusion from patentability strikes me as hypocritical.Normanhttps://www.blogger.com/profile/17573687140337856397noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17933389673647257642011-10-18T11:48:25.757+01:002011-10-18T11:48:25.757+01:00http://www.europeanvoice.com/article/imported/the-...http://www.europeanvoice.com/article/imported/the-ethics-of-stem-cell-research/71680.aspxDagvokatnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-54753797048088701482011-10-18T11:04:32.641+01:002011-10-18T11:04:32.641+01:00I am sure the IPKat will be relieved to see that t...I am sure the IPKat will be relieved to see that the decision of the Court is available in English.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-79557860647261518982011-10-18T10:24:54.291+01:002011-10-18T10:24:54.291+01:00Given that the social mores of the various Member ...Given that the social mores of the various Member States vary widely it is rather disappointing that we are being lumbered with a centralised edict on morality.<br /><br />It is difficult, for me at least, to see why the EU needs to be meddling in such questions in the first place. Is this really something that they have to take control of in order to ensure the maintenance of the internal market?Anonymousnoreply@blogger.com