Opaque CJEU Clarifies Human Embryos In Brustle

Upon reviewing the much anticipated ruling, Beatriz San Martin questions if the CJEU has erred.

Under Article 6(2)(c) of the Directive on the Legal Protection of Biotechnological Inventions (98/44/EC) (the "Biotech Directive"), inventions whose commercial exploitation includes the use of human embryos for industrial or commercial purposes are considered unpatentable.

On 18 December 2014, in Case C-364/13 International Stem Cell Corporation v Comptroller General of Patents, the Court of Justice of the European Union ("CJEU") ruled that in order not to be classified as a 'human embryo', a non-fertilised human ovum must not, in light of current scientific knowledge, have the inherent capacity of developing into a human being. The fact that a parthenogenetically- activated human ovum commences a process of development is not sufficient for it to be regarded as a 'human embryo'.