Brussels, 18/07/2014 (Agence Europe) - A genetically modified ovum that cannot become a human being is not defined as an embryo and therefore can be patented, argued a European Court of Justice Advocate General on Thursday 17 July in an opinion on case C-364/13.
The British legal system had sent a case to the European Court of Justice about a biotech company, International Stem Cell Corporation (ISC), which has lodged two patent requests with the British Intellectual Property Office on technology that produces pluripotent stem cells (that can develop into any cell in the human body) from parthenogenetically-activated oocytes (in other words, genetically activated without sperm and capable of commencing the process of development of a human being to provide embryos without fertilisation). The Office rejected both applications on the grounds that the inventions in question entail uses and even the destruction of human embryos and are therefore not patentable under EU law. This was challenged in court by ISC, claiming that, as the activated oocyte, in the absence of paternal DNA, is not capable of becoming a human being, the restrictions on patentability resulting from the Brüstle judgment do not apply to its technology. Advocate General Pedro Cruz Villalon disagrees and therefore suggests that the Court of Justice should exempt such organisms from the definition of a human embryo. Cruz Villalon adds, however, that, in the light of successful genetic manipulations conducted on mice, he “cannot exclude the possibility that, in the future, human parthenotes can be altered genetically in such a way that they can develop to term and thus into a human being”. For this reason, the Advocate General makes it clear that “parthenotes can only be excluded from the concept of 'embryos' to the extent that they have not been genetically manipulated to become capable of developing into a human being”. He says that nothing prevents EU member states from banning the patenting of such bodies “on the grounds of ethical and moral considerations”. He is of the view that, by excluding human embryos from patentability, the directive only expresses a minimum, EU-wide prohibition, whilst allowing the member states to extend the prohibition of patentability to other organisms on the basis of ethical and moral considerations. (LC)