Advocate General affirms the patentability of non-fertilised ova under certain conditions

What are “human embryos” that are excluded from patentability (Art. 6 c Biotechnology Directive 98/44/EC)? This very controversial question is currently subject of a request for a preliminary ruling submitted by the UK High Court of Justice before the European Court of Justice (ECJ).

International Stem Cell Corporation (ISC), a biotechnology company, applied to the UK Intellectual Property Office for two patents for a technology that stimulates by parthenogenesis the development of non-fertilised ova. The ova are not capable of commencing the process of development of a human being. The UK IPO rejected both applications on the grounds that the inventions in question entail uses and even the destruction of human embryos and are therefore not patentable under the Brüstle judgment of the Court of Justice (Case C-34/10 Oliver Brüstle/Greenpeace). ISC appealed the decision of the Office to the UK High Court of Justice. The Court referred the case to the ECJ (Case C-364/13  International Stem Cell Corporation / Comptroller General of Patents).

ISC claims that the restrictions on patentability resulting from the Brüstle judgment do not apply to its technology as the activated oocyte is not capable of becoming a human being.

At present the Advocate General has submitted its opinion in this case. In his view, such ova do not fall under human embryos and are thus not to be excluded from patentability since they do not have the inherent capacity of developing into a human being. Thereby the advocate General further develops the case law of the ECJ with regard to the Brüstle case.

In this judgment the Court stated that any non-fertilised human ovum whose development has been stimulated by parthenogenesis and which is capable of commencing the process of development of a human being constitutes a “human embryo”.

It remains to be seen whether the ECJ is going to follow the Advocate General’s opinion.