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« Let the Experiment Begin: Impact of ECJ Stem Cell Ruling on Synthetic Blood Development | Main | Geron Discontinues hESC Programs »

November 16, 2011


Dr. Zhu,

Thanks for comparing the patent law situation on hESCs in China/the EPO v. the US. The "morality/ethical/public interest" basis for denying patent-eligibility of such subject matter is a very slippery slope. There have been many attempts to preclude patenting in the US of various biotech subject matters (e.g., human nucleotides in the various Becerra bills) and only the recent prescription against patenting "human organisms" in the America Invents Act (AIA) has succeeded (and is frankly redundant as such patenting is proscribed by USPTO policy, as well as the US Constitution). That shows the reluctance of the US to follow the path of China/the EPO.

More significant, if the research underlying the subject matter for which patenting is sought is not itself deemed illegal/unlawful as being against "morality/ethical/public interest," then how can patenting such subject matter be deemed against "morality/ethical/public interest"? Does China/the EPO consider the underlying research on hESCs a "morality/ethical/public interest" problem? If not, I see a double standard being applied here by China/the EPO.

And further to EG's comment, when therapies are developed from hESCs, will it be legal to sell them in these countries? Will it be morally suspect to accept treatment which was derived by killing a blastocyst?

Thank you for your questions. It does seem like a paradox that some countries allow hESC research but not patents. My understanding is that to these countries who support hESC research only under restricted conditions but deny its patentability, it is immoral or against the public interest to industrialize, commercialize or monopolize the research results. In Contrast, hESC research that falls out of the legitimate research field is not patentable due to the immorality of violating human dignity while the lawful research results are not patentable because a monopoly on such results is against the public interest.

The same rule applies to imported tools or treatments that are patented in other countries. They may or may not be allowed to enter into the market of these countries.

I would be interested in reading your dissertation for research purposes, please get in touch with me.

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