[wordup] Canada's high court says 5-4 that engineered mouse not patentable

[Adam Shand]

Yay for Canada ... now if only we could get more sensible laws on 
software patents ...

ADam.

Via: politech at politechbot.com

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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