[Toronto Globe and Mail] POSTED AT 12:37 PM EDT Thursday, December 5 Harvard Mouse can't be patented By KIRK MAKIN and DARREN YOURK Globe and Mail Update
Higher life-forms cannot be patented in Canada until Parliament specifically debates the ramifications and states that they can, the Supreme Court of Canada ruled Thursday. The decisive, 5-4 ruling ended a 17-year battle waged by Harvard University to patent a genetically engineered mouse - the oncomouse - that develops cancer at a sharply increased rate. The court majority said the ethical issues involved in allowing patents for higher-life forms involves drawing lines between species - an act that ought to be done by parliamentarians. It said that simply because lower life forms are patentable in Canada, it does not logically follow that higher life forms meet the criteria for patentable material. "I am of the opinion that the unique concerns and issues raised by the patentability of plants and animals necessitate a parliamentary response," Mr. Justice Michel Bastarache said for the majority. The ruling was a major victory for a broad coalition of religious groups and environmentalists who feared the practical and ethical ramifications of letting scientists to claim ownership over genetically-manipulated life-forms. They portrayed a future in which lower life-forms in which "species integrity" is endlessly distorted by researchers. "It is a huge legal and ethical victory," said Jerry DeMarco, counsel for the Sierra Legal Defence Fund. "We saved the mouse from the legal trap just as it was about to close." Mr. DeMarco said that proponents of patenting higher life forms will have to justify their viewpoint in a much broader context than a specific case that involved a specific transgenic mouse. He also praised the court for "going against the tide" of other countries, where research and the commercial interests in patenting were placed ahead of ethical and philosophical issues. "We knew it was going to be tight based on the different lines of questioning by the judges when the appeal was heard," Mr. DeMarco said. "The really big deal is the ethical side. Patenting life - especially when it involved altering just a few small aspects of the mouse - wasn't right." In tossing the issue into the lap of Parliament, the dissenting judges stated that: "neither the Commission of Patents nor the courts have the authority to declare, in effect, a moratorium on life (or "higher" life) patents until Parliament chooses to act." The dissenting judges also argued that the mouse was patentable under Section 2 of the Patent Act. "The extraordinary scientific achievement of altering every single cell in the body of an animal which does not in this altered form exist in nature, by human modification of the genetic material of which it is composed, is an inventive 'composition of matter' within the meaning of s. 2 of the Patent Act," their dissent read. The case highlighted how ill-equipped a 100-year-old piece of legislation was to deal with a profusion of highly sophisticated modern issues. Indeed, there was a note of frustration in 1993, when the Canadian Intellectual Property Office agreed to register a patent on the Harvard Mouse's cancer-prone gene as well as related experiments - but not on the mouse itself or its offspring containing the "oncogene." The Federal Court of Canada upheld their rulings, but the Federal Court of Appeal ruled 2-1 to overturn it. The majority of that court found nothing in the Patents Act to prohibit the patenting of animals. Hundreds of patent requests have been pending in Canada while the case worked its way through the courts. Last year, the Canadian Biotechnology Advisory Council, which advises the government on issues involving genetic-modification, threw its weight behind the patenting of some plant and animal life forms - but not humans. "This is a victory for life," Joanne Dufay of Greenpeace Canada said Thursday. "The court got it right in terms of the law and in terms of public perception." Rick Smith of the International Fund for Animal Welfare said with the decision the Supreme Court of Canada shut the door on a "privatized parallel animal kingdom." "The court certainly got this right," Mr. Smith told reporters. "Canadians certainly distinguished between things that are easily patentable, like Velcro, zippers and car engines, and higher lifeforms, like mice or gorillas or whales." BIOTECanada, the national association of biotechnology researchers and practitioners, called the decision "bad news" for consumers and the Canadian biotechnology community. "Patents are not about owning a product or technology. Instead, patents allow for a framework under which someone with a novel product or technology can pursue scientific invention within the public domain, while being protected from the threat of someone else stealing their research," Janet Lambert, President of BIOTECanada said in a statement. "This decision stops our pursuit of knowledge and innovation dead in our tracks. It is a great loss to Canada at both the social and economic level."
