Invention Requiring Destruction Of Human Embryos Not Patentable: Calcutta High Court

The Calcutta High Court on Monday upheld the Patent Office's rejection of a patent application on the grounds that the invention involved the destruction of human embryos and was therefore unethical and contrary to public order and morality.

A single bench of Justice Ravi Krishan Kapur, affirming the Patent Office's decision to reject the invention under Section 3(b) of the Patents Act, 1970, noted that Section 3(b) prohibits patents for inventions whose main use or commercial purpose is against public morals or safety, or could seriously harm humans, animals, plants, or the environment.

"The invention requires the use of human embryos for industrial or commercial purposes within the meaning of section 3(b) of Act. Such use of human embryonic stem cells obtained through extraction from the embryo leading to abortion or destruction of embryo has been held to be unethical. The commercialization of the claimed invention is also held to be contrary to public order or morality and thus falls within the purview of non-patentable claims under section 3(b) of the Act", it said

The patent application, filed by Shroff Geeta in September 2008, sought protection for an invention that contained human embryonic stem cells and their derivatives. The Patent Office rejected the application in September 2018 under Section 3(b) of the Patents Act, 1970, which bars patents for inventions whose primary use or commercial exploitation is against public morals or safety, or could seriously harm humans, animals, plants, or the environment.

Shroff appealed arguing that the Patent Office had misinterpreted Section 3(b) and that her invention did not necessarily involve the destruction of human embryos.

The Patent Office maintained that the invention required collection of 2–7-day-old human embryos and that deriving embryonic stem cell lines necessarily involved their destruction. It concluded that such use of human embryos was unethical and impermissible, placing the invention within the prohibition of Section 3(b).

The court observed that Section 3(b) considers the primary use of the invention, potential harmful commercial exploitation, whether it is contrary to public order or morality, and whether it causes serious harm to life or health.

Citing international principles, including Article 53(a) of the Paris Convention and decisions such as Harvard College v. Canada (Commissioner of Patents), the court noted that patent law traditionally avoids granting protection to inventions that raise serious ethical concerns.

It agreed with the Patent Office that the invention required destructive use of human embryos at a delicate stage of development and that deriving embryonic stem cell lines through extraction amounted to abortion or destruction of embryos. It also noted that the Patent Office's decision was consistent with the National Guidelines for Stem Cell Research, 2017 and involved no misinterpretation of Section 3(b).

Accordingly, the High Court dismissed the appeal and upheld the refusal of the patent application.

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