Ludzkie embriony i godność człowieka w świetle prawa patentowego. Wyrok Trybunału Sprawiedliwości Unii Europejskiej z dnia 19 października 2011 r. w sprawie Brüstle przeciwko Greenpeace

Patentability of live forms, including that of human body, has been – and still is – the subject of attention of patent authorities and judicial practice. It is a controversial and disputable issue, as it concerns in particular treating a human being as a patentable subject matter. Therefore, patentability of human body has been exluded, even if Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions allows biological material which is isolated from its natural environment or produced by means of a technical process to be the subject of an invention even if it previously occurred in nature, i.e. the requirements of novelty and involvement of an inventive step have not been met. The author examines the current legal status of human embryo as a potential subject of invention under UE law, particularly in the context of the judgment of the Court of Justice of the European Union in the case Brüstle v. Greenpeace which is recognized as an essential element in the discussion on this issue, as well as an attempt to determine a possible direction of future development in this area in the EU law. The proper achievement of the tasks of the article depends mostly on the examination of the definition of human embryo proposed by the Court and its impact on EU law and domestic law of member states, and also an analysis of the status of the embryo in relation to the principle of respect to human dignity, patent law, scientific research in biomedicine, and the ban of use of human body for commercial purposes. In these areas, the legal status of embryo has a considerable importance.