[Ip-health] Re. Patenting of Higher Life forms

[Daya Shanker]

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Dear James
Things are not as bad in Canada. I am attaching a judgement of
Canadian Supreme Court just released invalidating patent on higher
life forms. This is invalidating the patenting on so called Harvard
Mouse, shoudl be called DuPont Mouse. Everything was finanaced by Du
Pont. This is particualry important in view of inclusion of patenting
on life-forms in International Monetary fund mediated "US-Argentina
Mutually Agreed solutions". We do not hear of any demonstration in
Argentina right now. It's all a mystery.
Daya Shanker
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Supreme Court blow to research in CanadaSam Mamudi - 08 December 2002
Biotechnology researchers suffered a defeat last week when the Canadian
Supreme Court ruled that a patent could not be granted on a genetically
altered mouse.

Harvard University=92s attempts to patent the oncomouse failed when the Cou=
rt
ruled that provisions in Canada=92s Patent Act did not allow for the protec=
tion
of inventions using higher forms of life.

In a five-to-four split, the court decided that the transgenic mammal did n=
ot
fit the Act=92s definition of =93composition of matter=94.

=93Composition of matter does not fit well with common understandings of hu=
man
and animal life,=94 wrote the court in its judgment.

=93Patenting higher life forms would involve a radical departure from the
traditional patent regime,=94 added the Court.

The decision leaves Canada out-of-step with patenting regimes in other indu=
strialized
jurisdictions, including the US, Europe and Japan.

According to David Morrow, chair of IP boutique Smart & Biggar, who
represented Harvard University in its case, the ruling does not send a good
message to the rest of the world about Canada=92s patenting regime. Morrow =
was
hopeful that the government would move to address the situation in the near
future, but acknowledged that before any changes were enacted, there would
also be an ethical debate relating to genetic changes made to higher life
forms.

But an ethical debate about the patentability of higher life forms would mi=
ss
the point of the argument, said Morrow: =93Just because Harvard has a paten=
t on
a mouse it doesn=92t mean that it can start mistreating animals.=94

Harvard University has been fighting the case ever since a patent examiner
and, later, the commissioner for patents rejected its 1985 application beca=
use
they believed that neither the rules of manufacture nor composition of matt=
er,
which are necessary for patentability, were present in the oncomouse case.

In 1997 a federal court upheld the commissioner=92s opinion. But in 2000 th=
e
federal appeals court ruled two-to-one that the oncomouse, and all transgen=
ic
mammals, constitute a composition of matter, thereby allowing the
genetically-modified mouse to be patented.

The Supreme Court has now reversed the appellate court=92s opinion. But the
Court made it clear that it was only considering a technical issue =96 the
definition of composition of matter =96 and left the way open for Canada=92=
s
politicians to refine the patent statute.

=93If higher life forms are to be patentable, it must be under the clear an=
d
unequivocal direction of the parliament,=94 stated the Court.

Following the ruling, the Canadian Ministry for Industry has said it will l=
ook
into the matter.

MIP Week welcomes your feedback on this or any other story. Please email th=
e
author with your comments. Letters may be published online.

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