In July 2014 we reported the Advocate General’s Opinion that parthenotes should not be considered “human embryos” within the meaning of 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 (The Biotech Directive) as long as they are not capable of developing into a human being and have not been genetically manipulated to acquire such a capacity, (see here).
The Court of Justice of the European Union (CJEU) has now published its decision in C-364/13 (see here). Whilst the court reiterated that a non-fertilised human ovum could not be patented if it had “the inherent capacity of developing into a human being”, it has also confirmed that an unfertilised ovum which is not capable of developing into a human being should not be considered a “human embryo” within the meaning Article 6(2)(c) of The Biotech Directive. The use of such ova, and importantly stem cells derived from such ova, for industrial or commercial purposes should therefore not be considered unpatentable.
This decision opens up a new opportunities for companies to patent inventions based upon the use of human stem cells, and comes just three years after the CJEU ruled that inventions requiring the destructive use of human embryos could not be patented (see here).