Canada’s Supreme Court has thrown back to the politicians the issue of
whether genetically modified plants and animals can be patented.
On Dec. 5, the court ruled by a 5-4 margin that existing Canadian
patent laws do not allow intellectual property rights for creation of
“higher life forms.”
But the justices made clear they were not commenting on the moral and
ethical issues raised by the life-patenting debate. They simply were
ruling that existing legislation did not allow it because animals did
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not meet the legal definition of products or processes covered.
“Patenting higher life forms would involve a radical departure from the
traditional patent regime,” wrote the Supreme Court majority.
“If higher life forms are to be patentable, it must be under the clear
and unequivocal direction of Parliament.”
The court pointed to plant breeders’ rights legislation as a possible
model for dealing with the issue outside the patent act.
The court judgment, which marked the end of a 17-year attempt by
Harvard University to win a Canadian patent for a GM mouse developed in
the early 1980s as a subject for cancer research, launched a fierce
political debate.
The national biotechnology lobby Bio-teCanada said it would kill the
incentive for companies to invest in Canada by making patents
questionable. The Harvard mouse has been patented in the United States,
the European Union, Japan and other countries.
“This decision stops our pursuit of knowledge and innovation dead in
our tracks,” said BioteCanada president Janet Lambert. “Today’s
decision destroys our Canadian infrastructure of knowledge and
innovation, creates an even greater brain drain and we will lose our
place at the world table in influencing how and where society accepts
this technology.”
Opponents of life-form patenting, including anti-biotech campaigners
and a coalition of Canadian churches, were ecstatic.
“This is a victory for life. Parliament should resist pressure that
will undoubtedly now come from the biotech industry,” said Joanne Dufay
of Greenpeace Canada. “Life forms are not light bulbs and mammals are
not machines.”
At the University of Saskatchewan, biotech researcher Peter Phillips
said the truth lies somewhere between those two positions.
The Supreme Court decision sends a “symbolic” message that might
influence some investment decisions, but it is not the death knell of
biotech research.
“At the margins and in some specific areas, some companies may be
inclined to debate if they want to invest research dollars here,” he
said Dec. 6. “But my guess is this is more symbolic than practically a
problem.”
Phillips, a member of the government’s Canadian Biotechnology Advisory
Committee that has supported patenting higher life forms, noted that
under international rules, Canada still must find a way to allow
companies to protect the intellectual property rights of their
inventions.
