Patently unobvious?

I confess to degrees of terminological confusion over the news this week of the ruling by the European Court of Justice on the patentability of stem cell research.

(Great, isn’t it, the versatility of words? I mean, the noun can be verbalised – ‘patented’, ‘patenting’; adjectived – ‘patentable’; adverb-alised – ‘patentably’, err… ‘patently’; back to noun – ‘patentability’. How about ‘patentableness’?).

When I first heard about this on BBC News I shuddered at it being deemed necessary to bring in Fergus Walsh who, with his mythical pigeon-holing, personifies one end of the scale of the problem with communicating science to the laity: over-dumbed-down patronising, vs bamboozling alienation. (Guess which?) But, to be fair, he spelled this out quite well.

So, the issue of patents being applied to methods. Science, does it not, proceeds, in part, by virtue of its remit to make publicly available the methodology by which its data and findings are arrived at? Anyone else can then attempt to replicate, re-evaluate and move on therefrom. Presumably, a patent on a methodological procedure does not bar anyone else from using it, but is granted to prevent others somehow profiting from it (without permission for a defined period)? Bit grey though: if it discourages others – under pressure to reap commercial proceeds now universities are seemingly more interested in that than anything else – from using the method through fear of infringing the patent, the patent is indirectly bolstered, isn’t it?

A 2004 patent granted to a researcher in Germany led to the prevailing challenge at the ECJ. Now, there’s me momentarily rolling my eyes at this news, thinking the Vatican had got its big sticky oar in. But no. Just goes to show you should never jump the gun. This case was instigated… by… Greenpeace. WTF?

Greenpeace. Yeah – the environmental protest/action group. Hang on a minute, since when did Greenpeace come to consider itself bioethically prominent enough to start interfering so? Okay, so it is concerned about GMOs: how genetically modified crops and the like might have ecologically and environmentally detrimental knock-on effects. Well, challengeable, but fair enough. But since when could freely-informed donation of an IVF-(never-to-be-implanted-otherwise-to-be-discarded)-surplus ‘embryo’, and deriving cells therefrom for the purposes of medical research, be considered environmentally unsound? Is it an over-population issue? Like, say, we ultimately find important stem cell-based disease cures, and thus those people that would have died prematurely get to live longer, improved lives, thus increasing the burden on the planet’s finite resources?

If so, then one might reasonably consider that Greenpeace would have more appropriately addressed the second item discussed yesterday on BBC Radio 4’s Material World (‘The Population Process’), rather than the opener (‘EU Stem Cells Ruling’), to which contributed one Dr Christophe Then, the Greenpeace campaigner who brought the case.

The European Court of Justice said in a statement:

’The use of human embryos for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it is patentable.

‘But their use for purposes of scientific research is not patentable.’

Err, that reads a bit circular to me – how can therapeutic or diagnostic purposes be usefully applied to a human embryo, without the necessary research to determine whether they are useful? When does the research acquire patentableness?

It added:

‘A process which involves removal of a stem cell from a human embryo at the blastocyst [early embryo] stage, entailing the destruction of that embryo, cannot be patented.’

Which (aside from pedantically pointing out that a blastocyst does not contain any stem cells) is okay then? I mean, embryonic stem cells have long since been repeatedly derived. Who wants to patent that procedure now? Once you have them in a culture dish, you no longer have an ‘embryo’ (that would otherwise have languished in frozen storage until such a time that it would have been destroyed). So, you can then develop your own patentable methods for directed differentiation, and subsequent therapeutic application, can you not? Some scientists are (understandably) up in arms. But I’m wondering, as the lawyers are deducing, does it actually make that much difference to research? Does blocking this patent hinder the research, or enable more researchers to have a crack?

It seems this case ended up being referred to the ECJ in order ‘to clarify the definition of “human embryo”.’ From what I’ve seen reported, that has not been clarified. We might wonder whether Greenpeace has gotten too big for its boots and become somewhat muddled here. In its Vatican-like presumption of intellectual and ethical authority to determine what is best for us, Greenpeace might want to consider where the majority of people actually are on embryonic stem cell research. Predictably, Greenpeace is now getting back-patted by catholic and evangelical commentators. But it is also getting a tongue-lashing from a number of its hitherto own supporters. Some of whom are as confused as I am.

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