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
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
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.