FC: Canada's high court says 5-4 that engineered mouse not patentable

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Date: Thu, 5 Dec 2002 17:27:03 -0500
To: Declan McCullagh <declan_at_well.com>
From: Jason Young <jyoung_at_lexinformatica.org>
Subject: Harvard can't patent mice in Canada
Declan,
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
Best,
Jason
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