Update on Patentability of Unfertilised Human Ova

In a recent decision dated 18 December 2014, the Court of Justice of the European Union (CJEU) ruled that unfertilised human ova whose further development has been stimulated by parthenogenesis (known as ‘parthenotes’) are patentable. This judgement is based on the decision that parthenotes are not considered to be human embryos. If parthenotes had been deemed human embryos, then they would be unpatentable under current European Law. 

The case was referred to the CJEU by the UK High Court after the UK Intellectual Property Office refused a patent application filed by the International Stem Cell Corporation (‘ISCC’) for parthenotes on the basis that they were human embryos.

In a 2011 decision, Brϋstle, the CJEU had held that a human embryo was effectively any human egg cell from fertilisation onwards. The UK Intellectual Property Office had based its decision to refuse ISCC’s application on broadly similar grounds.

In the CJEU decision, it was ruled that parthenotes do not have the capability of completing the process of development into a human being, and therefore cannot be considered human embryos.

The CJEU decision means that ISCC is likely to be granted its patent on parthenotes, and paves the way for further patent applications in this area to be granted.

This is an important decision in the field of biotechnology patents, as it will enable key research in the field of stem cells to be protected by patents, whilst ensuring that fertilised embryos, or other human embryos capable of completing the process of development into a human being, are not protectable by patents.

If you have any questions relating to protection of biotechnology inventions or any IP related issue, please contact us and one of our advisors will get back to you.

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