Patentability Of Embryonic Stem Cells Related Inventions

With the rapid development of embryonic stem cells'inventions, the results of theseresearches are widely and increasingly applied in further researches and therapies.Meanwhile,whetherlegal protectionshouldbe grantedtothese results and whichlawshould be applied if the answer is yes, faces every country, which are involved inthese researches. Patentability of human embryonic stem cells has attracted lots ofattention for these years. On one hand, there is economic stimulus of patenting andcommercializing it for investing corporations. On the other hand, there are somearguments considering moral elements and free access to science. The most criticalissueishowtobalancetherightsofinventorsandinterestofthewholesociety.European community and United States have different opinions on this issue. Europecommunity opposes patenting embryonic stem cells, referring to moral and scientificconsideration. Although there're opposition opinions in the U.S, patenting stem cellsis becoming more and more common. Probably it is because US emphasizes theprotectionofprivaterightsandhighlightstheadjustmentandstimulusfunctionsofthemarket.Chinahasexemptedpatentabilityofembryonicstemcells'inventionsbecauseoftheprincipleofpublicordreandmorality.However,someacademicshavedifferentpointsofviewtowardsthisreason.Giving the fiercer and fiercer economic and industrial competition, it is time to consider the patentability of embryonic stem cell inventions reasonably, by balancingthe benefit of both industrial and scientific fields. To be optimum, more specificcriteria and principles should be promulgated in embryonic stem cell field. Certainlimitationandexemptionaresuggestedtocreate.The first part of this article introduces the definitions of related terms, such as stemcells,embryonicstemcellsandtheirimportanceinscienceandtherapies.The second part introduces the patentability of embryonic stem cells in bothEuropean Community and United States, in the aspects of law, legal practice andacademicdiscussions.The third part discusses the patentabilityof embryonic stem cells'inventions in thepatent system in China. By analyzing the requirements of patenting, a conclusion isreached that according to the criteria of patent law, embryonic stem cells'inventionsshould not be thoroughly exempted from patenting. A conservative attitude towardshuman materials should be evolved and updated. The opinion that patenting humanmaterials should be prohibited because it represents commercialization of humanbodyis outdated. Embryonicstem cell has enormous potentialityinmedicineindustry.To prepare for the future competition of embryonic stem cell products and process,outmoded conceptions should be altered quickly. What China should do, is to modifyGuideline for Examination (2006), which is not consistent to patent law, takingaccount of advanced patent regime of United States, and its own foundation ofeconomic structure, traditional culture, and legal system. HESC inventions should beclassified into different categories for analysis on their patentability. The suggestionsareproposedintheforthpart.Additionally,certaincircumstancesshouldbeexemptedfrom exclusiveright onpatentinginventions, suchas experimental useandmandatorypermission.