STRIK­ING A BAL­ANCE

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not more than 14 days old, on a writ­ten ap­pli­ca­tion and sub­ject to cer­tain con­di­tions. This im­plies that in­ven­tions from re­search which does not meet th­ese cri­te­ria could fall within use which is “con­trary to law”, and hence not be patentable.

How­ever leg­is­la­tion strug­gles to keep pace with new de­vel­op­ments and tech­niques in this rapidly ad­vanc­ing field and many view this leg­is­la­tion as be­ing out­dated.

Some guid­ance on how our courts may deal with stem cell in­ven­tions may be ob­tained from for­eign prece­dents. In Europe the use of hu­man em­bryos for industrial or com­mer­cial pur­poses is not patentable in terms of the Euro­pean Biotech Di­rec­tive. This is based on the ex­clu­sion from patentabil­ity of in­ven­tions the com­mer-

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In­ter­na­tional Stem Cell Cor­po­ra­tion v Comptroller Gen­eral of Patents it was de­cided that a “hu­man em­bryo” must nec­es­sar­ily have the in­her­ent ca­pac­ity of de­vel­op­ing into a hu­man be­ing. The ca­pa­bil­ity of an un­fer­tilised ovum to en­gage in a process of cell di­vi­sion and dif­fer­en­ti­a­tion sim­i­lar to that of a fer­tilised ovum is not suf­fi­cient for it to be con­sid­ered as a hu­man em­bryo.

The de­ci­sive cri­te­rion is whether it has the in­her­ent ca­pac­ity of de­vel­op­ing into a hu­man be­ing. This there­fore al­lows the patent­ing of stem cell in­ven­tions based on un­fer­tilised hu­man ova whose devel­op­ment has been stim­u­lated by partheno­gen­e­sis and which are not ca­pa­ble of be­com­ing hu­man be­ings. This de­ci­sion found a bal­ance be­tween the need to al­low re­search in this field to con­tinue to bring in­no­va­tive ther­a­pies to mar­ket, and moral con­cerns on the use of hu­man em­bryos.

It is to be hoped that SA’s courts, when faced with the is­sue, will adopt the same bal­anced ap­proach and al­low the patent­ing of in­ven­tions which utilise un­fer­tilised hu­man ova whose di­vi­sion and fur­ther devel­op­ment have been stim­u­lated by partheno­gen­e­sis, and which are not ca­pa­ble of be­com­ing hu­man be­ings.

Leg­is­la­tion strug­gles to keep pace with new de­vel­op­ments and tech­niques in this rapidly ad­vanc­ing field

PPi­ic­ct­tuur­ree:: TTHIINKSSTTOCK

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