THE Canadian patent office receives more than 100 patent requests a
day. It takes up to 18 months to make public an approved patent, and
the invention is then protected for 20 years.
Patent application serial number 484,723, filed June 21, 1985, still
awaits approval. It reached the Supreme Court of Canada last week and
the court reserved judgment.
The subject of the case is small but the implications are huge.
The patent involves a genetically altered mouse called the Oncomouse.
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Developed by Harvard College in Boston, the mouse has been genetically
altered so it is more susceptible to cancer, making it invaluable in
disease research.
The mouse has been patented in the United States, Europe and Japan.
The application is unique because Harvard wants to patent the entire
mouse rather than the particular gene that contributes certain specific
traits.
According to documents before the Supreme Court, the patent application
is not restricted to mice, but could also apply to other species of
transgenic animals.
This is exactly what worries the federal government. Its lawyer says
this patent could apply “from a tiny shrew to a tremendous blue whale”
and could lead to patents on genetically altered human beings.
A submission from the Canadian Council of Churches and the Evangelical
Fellowship of Canada, which has intervener status in the case,
criticizes the patenting of higher life forms “given the serious moral
and ethical questions that directly involve issues such as economic and
environmental concerns, open research, animal rights, and the
commodification and objectification of life.”
The churches, as well as some universities, warn that patenting the
Harvard mouse could “hamper research that could lead to beneficial
discoveries because scientists may not be able to conduct research
without infringing the patent rights of others.”
Prohibitive costs might arise for certain types of research, they
suggest.
But public and private researchers say the developers deserve to cover
their costs.
“Lack of patent protection hurts research and innovation, since patents
make information on a new innovation publicly accessible in return for
a limited term of protection.
“The limited term of patent protection allows the innovator to recoup
their development costs, but with this, it is not economically viable
to develop new innovations,” said BioteCanada, in a News release
news about
the case.
The organization, which represents interests including chemical
companies, research councils, universities and private biotechnology
companies, said patents are needed to raise capital.
Resolution is hindered partly by archaic patent laws but also by lack
of willpower in government to establish new laws on patent applications
involving biotechnology.
Arguments centre around the definition of this mouse as an invention
that can be patented.
Examiners at the Canadian Intellectual Property Office initially
rejected the patent in 1993 under the definition of whether it was an
invention. In August 2000, the Federal Court of Appeal granted the
patent, concluding that each animal in the patent application is a
“manufacture” or “composition of matter,” thus an invention.
In the case before the Supreme Court, the main point made by the
Commissioner of Patents is that it believes the court erred in allowing
higher life forms to be patentable subject matter.
Researchers and their places of employment deserve compensation for
their discoveries.
It’s possible this could be done through tax incentives, public grants
or other innovations.
Placing patents on life forms such as the Harvard mouse has potential
to discourage or distort future research direction.
On the other hand, discouraging research and innovation by not allowing
adequate compensation or profit could do the same thing.
Parliament should find the courage to provide guidance regarding the
patenting of higher life forms. It is long overdue, as proven by this
16-year fight for a patented mouse.
