' --- Date: Thu, 5 Dec 2002 17:27:03 -0500 To: Declan McCullagh <declanat_private> From: Jason Young <jyoungat_private> 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 -- --- http://www.lexinformatica.org http://www.privaterra.org http://www.epic.org PGP KeyID 0x46E11518 ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ Recent CNET News.com articles: http://news.search.com/search?q=declan -------------------------------------------------------------------------
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