Biotech, Schmeiser feel fallout of ruling

When Percy Schmeiser heard that the Supreme Court of Canada had said no

to a patent for the Harvard Mouse, he got his hopes up.

“Apparently it has been really beneficial for me,” said Schmeiser, the

day after the Dec. 5 decision. He has been fighting with Monsanto over

the company’s patented glyphosate-tolerant canola for years.

Schmeiser has asked the Supreme Court to hear his case in hopes it will

overturn lower court rulings that found him guilty of growing Roundup

Ready canola without a licence, in breach of Monsanto’s patent rights.

A different feeling was growing in Canada’s biotechnology industry. It

had expected Canada’s highest court to follow the reasoning of courts

in many other Western nations and allow Harvard College to patent a

genetically engineered mouse.

The court ruled that a living mouse cannot be patented, even if the

genes in its cells have been genetically modified.

“A lot of those companies rely on getting a patent for getting

capital,” said University of Saskatchewan law professor Martin

Phillipson, who specializes in patent law.

He said the ruling has shocked biotechnology companies and scientists,

and pleasantly surprised him. The court has thrown the issue before

Parliament rather than simply extending patent laws to higher

lifeforms, as has been done by other nations’ courts.

Although Phillipson expects this ruling to derail patent applications

that have not yet been approved, he doesn’t think it will roll back any

patents that have already been given for products such as Monsanto’s

Roundup Ready canola.

“I don’t think you’re going to see all sorts of problems with existing

patents. I don’t think they’re likely to be revoked,” said Phillipson.

That’s because patents on lifeforms until now have covered events that

occur within cells, at a very basic level of creation. The lifeform

that arises from those early events has not itself been patented.

Monsanto’s and other crop patents apply to the process of splicing

genes and inserting them into cells, but have not been extended to the

living plants.

Harvard College attempted to patent both the process of creating a

genetically modified mouse and the living creature and its offspring.

The majority of Canada’s Supreme Court rejected it by a narrow margin.

Four of nine justices disagreed.

The majority ruling said there is a fundamental difference between

“lower” and “higher” forms of life and it would not extend patent

protection to higher forms.

“Where do you draw the line, that’s the crucial question,” said

Phillipson. “The court said it didn’t really want to be the one to draw

the line.”

Theresa McClenaghan, counsel for the Canadian Environmental Law

Association, an organization that argued against the Harvard Mouse

patent, said the court was right to make Parliament decide whether to

extend patent rights.

“There are a whole bunch of opportunities from the new technology, and

a whole bunch of risks, and you need to say which are appropriate for

patenting,” said McClenaghan. “We don’t think you should be able to

patent higher life forms.”

Phillipson, who thinks the Supreme Court was right to determine that

this was more than a legal issue, said the government could amend the

patent act to allow higher life forms to be patented, and the issue

would be resolved.

But McClenaghan said her organization hopes there is widespread debate

on biotechnology issues. She said farmers need to know what their

liabilities are if they accidentally end up with patented genes in

their livestock or crops.

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