Insights: Advocate General concludes parthenotes are not human embryos for patent purposes

In September 2013, we reported on a Referral to the CJEU from the UK High Court concerning interpretation of the term “human embryo” as it appears in the European Biotech Directive. The Advocate General’s Opinion in this case, C-364/13, was delivered on 17 July 2014 and concludes that:

“Unfertilised human ova whose division and further development have been stimulated by parthogenesis are not included in the term ‘human embryos’ in Article 6(2)(c) of Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions as long as they are not capable of developing into a human being and have not been genetically manipulated to acquire such a capacity.”

If the CJEU follow this Opinion, inventions relating to parthenotes and importantly, embryonic stem cells derived therefrom, should not be excluded from patentability. For more details about the Referral, see here.