International Stem Cell Corporation (Advocate General's Opinion)

(Request for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division (Patents Court) (United Kingdom))

(Directive 98/44/EC — Legal protection of biotechnological inventions — Patentability — Stem cells — Stimulation by parthenogenesis of unfertilised human ova to create stem cells — Parthenotes — List of inventions excluded from patentability — Non-exhaustive character of the list — Exclusion of ‘uses of human embryos for industrial or commercial purposes’ — Notion of ‘human embryo’ — ‘Capable of commencing the process of development of a human being’)

These proceedings offer the Court of Justice an opportunity to consider, again, the meaning of ‘human embryos’ in 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 Directive’). ( 2 )

In fact, the question that the High Court of Justice, Chancery Division (Patents Court) referred to the Court of Justice in the present case is, but for one difference, identical to one of the questions that the Court answered three years ago in Brüstle , ( 3 ) at that time on reference by the Bundesgerichtshof.

The referring court is of the opinion that given the Court’s reasoning in Brüstle , namely in paragraph 36 of the judgment, ( 4 ) it is not possible to state with the necessary certainty whether the Court of Justice would give the same answer if confronted with the specification made in the question referred in this case.