PATENTABILITY OF EMBRYONIC STEM CELLS – NEW REFERRAL TO THE CJEU

The intense and controversial debate on the patentability of embryonic stem cells in Europe has recently entered another round. On April 17, 2013, the High Court of England, in Case [2013] EWHC 807 (Ch) (International Stem Cell Corporation v Comptroller General of Patents), requested the Court of Justice of the European Union (CJEU) to further clarify its previous interpretation of the term “human embryo”, given in landmark decision C-34/10 (Oliver Brüstle v Greenpeace e.V.; handed down on October 18, 2011) (cf. Newsletter issue of May 2011).

The new referral concerns two UK patent applications, both relating to methods of obtaining human embryonic stem cells derived from oocytes that were stimulated by parthenogenesis, that is, by activation of an oocyte in the absence of sperm. In contrast to a fertilized embryo, the cells of such activated oocyte (i.e., a parthenote) are pluripotent but not totipotent (i.e., can develop into embryonic but not extra-embryonic tissue). In other words, this parthenogenetic approach of obtaining embryonic stem cells does not involve the destruction of fertilized embryos. However, both patent applications were considered to contain subject matter being excluded from patentability (i.e., the “use of human embryos for industrial or commercial purposes”) in view of the guidelines laid down in decision C-34/10.

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