Brüstle v Greenpeace (CJEU, C-34/10, 2011)

Dhenne Avocats · 11 October 2026

Our analysis

Summary

On a reference from the Federal Court of Justice (BGH), the Grand Chamber gave an autonomous and broad definition of « human embryo » in Article 6(2)(c) of Directive 98/44: any human ovum from fertilisation, together with any non-fertilised ovum into which the cell nucleus from a mature human cell has been transplanted or which has been stimulated by parthenogenesis. The exclusion from patentability also covers the use of embryos for scientific research and extends to any invention whose implementation requires the prior destruction of human embryos, even where the claims do not mention it. The judgment sets the limit of patentability for inventions derived from human embryonic stem cells.

Facts and procedure

Mr Brüstle held a German patent filed on 19 December 1997 concerning isolated and purified neural precursor cells, processes for producing them from embryonic stem cells and their use for the treatment of neural defects (para 15). On an action brought by Greenpeace, the Bundespatentgericht (Federal Patent Court) declared the patent invalid insofar as it covers precursor cells obtained from human embryonic stem cells and the processes for producing them (para 19). On the patentee’s appeal, the BGH referred three questions, the outcome depending on the interpretation of Article 6(2)(c), implemented in Paragraph 2 of the PatG (paras 19 to 23).

The applicable law

Article 6(1) of Directive 98/44 excludes from patentability inventions whose commercial exploitation would be contrary to ordre public or morality; Article 6(2)(c) refers in particular to uses of human embryos for industrial or commercial purposes. The Court relied on recital 16, on respect for human dignity, on Article 5(1) and on recitals 14, 38 and 42 (paras 32, 33, 42 and 44).

Question

What does the concept of « human embryo » cover, does the exclusion extend to use for scientific research, and does it apply to an invention that does not claim the use of embryos but requires their prior destruction?

Decision

« Human embryo » is an autonomous concept, since the directive does not refer to national law and Article 6(2) leaves Member States no discretion (paras 26 to 29). As the legislature intended to exclude any patentability where respect for human dignity could be affected, the concept must be understood in a wide sense (para 34). Any human ovum is an embryo from fertilisation (para 35), as are non-fertilised ova obtained by nuclear transfer or parthenogenesis, which are capable of commencing the process of development of a human being (para 36). It is for the national court to determine, in the light of scientific developments, whether a stem cell obtained from an embryo at the blastocyst stage is an embryo (para 37).

Scientific research entailing the use of embryos cannot escape the exclusion: although its aims differ from industrial or commercial purposes, research that is the subject of a patent application cannot be separated from the patent and the rights attaching to it (paras 41 to 43). Only use for therapeutic or diagnostic purposes applied to the embryo and useful to it remains patentable (paras 44 and 46). Lastly, an invention is excluded where its implementation requires the destruction of human embryos, even if the claim does not refer to it, and regardless of whether the destruction occurs at a stage long before implementation, for instance when a stem cell line is created (para 49). Any other reading would allow the prohibition to be circumvented by skilful claim drafting (para 50). The Court noted that the EPO Enlarged Board of Appeal had adopted an identical interpretation of Rule 28(c) of the Implementing Regulations to the EPC (paras 45 and 51).

Key points for practice

• « Human embryo » is an autonomous EU law concept, read broadly, which includes non-fertilised ova obtained by nuclear transfer or parthenogenesis (paras 26, 35 and 36).
• The use of embryos for scientific research falls within the exclusion where it is the subject of a patent application (paras 43 and 46).
• The exclusion is assessed by reference to the technical teaching of the invention, not merely the wording of the claims (paras 49 and 50).
• Practical point: for an invention using human embryonic stem cells, the patentability analysis must trace the origin of the starting material, since upstream destruction of embryos is enough to exclude protection.

Relevance before the UPC

Since Rule 28(c) of the Implementing Regulations to the EPC is worded in the same terms as Article 6(2)(c) of the directive (para 45), this interpretation bears directly on the assessment of the validity of European patents under Article 53(a) EPC.

Provisions applied

Directive 98/44/EC

Arts 5(1) and 6; recitals 14, 16, 38 and 42

European Patent Convention

Art. 53; Rule 28

National law

Paragraphs 2 and 22 PatG

Case law cited

Netherlands v Parliament and Council (C-377/98); Infopaq International (C-5/08); Padawan (C-467/08); EPO Enlarged Board of Appeal, G 2/06

Related decisions

• G 2/06 (Wisconsin Alumni Research Foundation), 25 November 2008, the EPO Enlarged Board of Appeal decision cited as adopting an identical interpretation.

Prepared by Dhenne Avocats from the text of the decision (EUR-Lex, English version), consulted on 11 October 2026. Only the official text is authoritative.