STRIKING A BALANCE
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keep pace with new developments and techniques in this rapidly advancing field and many view this legislation as being outdated.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-
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