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Harvard can't patent mice in Canada

Jason | 07.12.2002 13:21

After nearly 18 years of appeals up through the courts, the Supreme
Court of Canada today decided, in a 5-4 split, that a higher life form
is not patentable because it is not a "manufacture" or "composition of
matter" within the meaning of "invention" in the Patent Act.

Harvard
had been trying to claim patent protection on the process by which
so-called 'oncomice' are produced and the end product of the process.

The minority, in dissent, argued that the human modfication of every
single cell in the body of an animal which does not in this altered
form exist in nature is an inventive "composition of matter" within
the meaning of the Patent Act. They also observed that the oncomouse
had now been "patented in Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands,
Portugal, Spain, Sweden, the United Kingdom and the United States. A
similar patent has been issued in Japan. New Zealand has issued a
patent for a transgenic mouse that has been genetically modified to be
susceptible to HIV infection. Indeed, we were not told of any country
with a patent system comparable to Canada's (or otherwise) in which a
patent on the oncomouse had been applied for and been refused."

However, the majority argued that although "the Patent Act is designed
to advance research and development and encourage broader economic
activity, it simply does not follow from the objective of promoting
ingenuity that all inventions must be patentable" and "the fact that
the Patent Act in its current state is ill-equipped to deal
appropriately with higher life forms as patentable subject matter is
an indication that Parliament never intended the definition of
invention to extend to this type of subject matter."

The court's finding can be summed thusly: regardless of whether the
Court thinks the oncomouse is deserving of patent protection, the
language of the Act does not permit it and the significant values
implicated by such a finding dissuades the Court from reading in that
intent. It is up to Parliament to situate the line between lower life
forms (which are patentable) and higher life forms, including humans,
with regards to patentability.

Here's the decision: Harvard College v. Canada 2002 SCC 76, paras.
169-170, online: LexUM  http://www.shorl.com/gupukutyhabry. Story on
CBC  http://cbc.ca/stories/2002/12/05/scc_mouse021205

Jason