Austin Smith and others argue in favour of patenting technologies derived from human embryonic stem cells (Nature 472, 418; 2011), a case still pending with the European Court of Justice. But there is more at stake than European commercial interests.

In 1998, agreement was reached in Europe under Directive 98/44 not to recognize patents involving the use of human embryos for commercial purposes (R. Hipp and P. Liese Nature 474, 36; 2011).

The court must decide whether the use of these cells 'necessitates the prior destruction of human embryos or their use as base material', as the advocate-general, Yves Bot, has argued (see If so, such use would seem to fall beyond the scope of what is legally patentable.

Smith et al. warn that “European discoveries could be translated into applications elsewhere, at a potential cost to the European citizen.” This begs the question of whether patents, which may also be held by non-European companies, may sometimes impede wider research cooperation (S. Rabin Nature Biotechnol. 23, 817–819; 2005).

In any case there will often be some commercial risk whenever Europe defends a more rigorous ethical standard than is defended elsewhere. This risk is not itself an argument against upholding the standard prescribed by law.

Without prejudice to the final judgment in this case, the resolution of patent law is and ought to be more than a question of European commercial interest.