International Stem Cell Corporation v Comptroller General of Patents, Patents Court, London, UK, 17 April 2013, Case No.  EWHC 807 (Ch)
Following an appeal by International Stem Cell Corporation (“ISCC”) against a decision that the inventions disclosed in two of its patent applications relating to human stem cells were excluded from patentability, the UK High Court (Deputy Judge Carr QC) has made a reference to the Court of Justice of the European Union (“CJEU”), requesting that the term “human embryos” in Article 6(2)(c) of Directive 98/44/EC on the Legal Protection of Biotechnological Inventions (“Biotech Directive”) be clarified. In particular whether this includes unfertilised human ova whose division and further development have been stimulated by parthenogenesis, and which, in contrast to fertilised ova, contain only pluripotent cells and are incapable of developing into human beings.
This follows guidance given by the CJEU on the correct interpretation of Article 6(2)(c) in Brüstle (Case C-34/10) in which it ruled inter alia that any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis constitutes a ‘human embryo” within the meaning of Article 6(2)(c) due to it being capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so.