Study On Patentability Of Human Embryonic Stem Cell Related Inventions

With the development of biotechnology and the emergence of biotechnology patent applications, ethical issues posed by biotechnology and whether patent application for biotechnology can be granted a patent application caused a huge controversy. Such controversy is particularly intense in the establishment, research and patent application of human embryonic stem cell line. One view is that, to obtain human embryonic stem cells, human embryo has to be destroyed, which is equivalent to murder. Therefore, no matter how noble the purpose of human embryonic stem cell research is, the behavior of this destruction of human embryos is absolutely unacceptable. Consequently, such inventions violate public morality and should not be patentable. Some people also worry that granting human embryonic stem cell-related invention patents will lead to creation of embryos for industrial or commercial purposes, causing a huge moral disaster.European Patent Office holds a negative attitude in granting the human embryonic stem cell-related invention patents, according to the European Patent Convention Article 53 (a) and Rule 23d (c) of its Implementing Regulations. In contrast, the United States has no ethical examination clause, which take a relatively relaxed standard of examination. Thus, in the United States, a large number of human embryonic stem cell-related inventions were patented. Chinese examination are similar in Europe, wherein the invention-creations involving human embryonic stem cells are refused to granting a patent right on the ground that they relate to "human embryos for industrial or commercial application", which violates public morality.This paper compares the granting status of this kind of invention in Europe, the United States and China, and analyzes the ethical issues of the human embryonic stem cell-related inventions. It is believed that the blastocyst developed within 14 days after fertilization, from which the human embryonic stem cells are obtained, is not an"embryo". Manupulation of the blastocyst is not equivalent to "kill" a person. The pluripotent human embryonic stem cells only have cell life, because they do not have the potential to develop into a complete individual. Thus, granting the pluripotent human embryonic stem cells a patent right does not violate public morality. Accordingly, this paper proposes to change the current policy in China, which pay much attention to research than patent protection, to amend the related provisions in the Guidelines for Examination to definitely stipulate that the pluripotent human embryonic stem cell is the patentable subject matter, and to require the applicant to fulfill more stringent disclosure obligations.