Harvard College v. Canada (Commissioner of Patents)
Encyclopedia
Harvard College v. Canada (Commissioner of Patents) [2002] 4 S.C.R. 45, 2002 SCC 76 is a leading Supreme Court of Canada
case concerning the patentability
of higher life form
s, in particular, the Harvard oncomouse
.
as well as a patent for the process by which they created the oncomice.
The Commissioner of Patents rejected their application to patent the mice on grounds that higher life forms were not inventions under section 2 of the Canadian Patent Act
which defines an invention as any new and useful improvement, in an art, process, machine, manufacture or composition of matter.
Though the Court believed that the Commissioner went beyond his powers in ruling against a patent on public policy reasons, the Court came to the same conclusion. The sole issue before the Court was whether the word “manufacture” and “composition of matter” found in the Patent Act include higher life forms.
In its analysis, the Court found that a mouse is not composed solely of matter. Higher life forms possess qualities that transcend the genetic materials that they were composed of. The Court interpreted the patenting of such life to be outside of the purpose and objectives of the Patent Act. To read-in higher life into the act would be beyond the authority of the Court and would be a massive change in the current patent regime. Given the significant public policy issues it would be best settled by the legislature. Only through direct legislation should such an interpretation of the Act be applied.
. Binnie harshly criticized the distinction between "compositions of matter" and biological life, claiming that the majority is not giving enough deference to government and that it is the legislature's role to legislate exceptions to the Patent Act.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
case concerning the patentability
Patentability
Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent...
of higher life form
Organism
In biology, an organism is any contiguous living system . In at least some form, all organisms are capable of response to stimuli, reproduction, growth and development, and maintenance of homoeostasis as a stable whole.An organism may either be unicellular or, as in the case of humans, comprise...
s, in particular, the Harvard oncomouse
Oncomouse
The OncoMouse or Harvard mouse is a type of laboratory mouse that has been genetically modified using modifications designed by Philip Leder and Timothy A Stewart of Harvard University to carry a specific gene called an activated oncogene. The activated oncogene significantly increases the mouse’s...
.
Background
Harvard researchers developed a process by which it could breed genetically altered mice that would possess a cancer-promoting gene. The school applied for a patent for the genetically altered mice they called the oncomouseOncomouse
The OncoMouse or Harvard mouse is a type of laboratory mouse that has been genetically modified using modifications designed by Philip Leder and Timothy A Stewart of Harvard University to carry a specific gene called an activated oncogene. The activated oncogene significantly increases the mouse’s...
as well as a patent for the process by which they created the oncomice.
The Commissioner of Patents rejected their application to patent the mice on grounds that higher life forms were not inventions under section 2 of the Canadian Patent Act
Patent Act (Canada)
The Canadian Patent Act is Canadian federal legislation and is one of the main pieces of Canadian legislation governing patent law in Canada. It sets out the criteria for patentability, what can and cannot be patented in Canada, the process for obtaining a Canadian patent, and provides for the...
which defines an invention as any new and useful improvement, in an art, process, machine, manufacture or composition of matter.
Ruling
The Court found in favour of the government, ruling that higher life forms are not patentable. The opinion of the Court was written by Bastarache with L'Heureux-Dubé, Gonthier, Iacobucci, and LeBel JJ concurring.Though the Court believed that the Commissioner went beyond his powers in ruling against a patent on public policy reasons, the Court came to the same conclusion. The sole issue before the Court was whether the word “manufacture” and “composition of matter” found in the Patent Act include higher life forms.
In its analysis, the Court found that a mouse is not composed solely of matter. Higher life forms possess qualities that transcend the genetic materials that they were composed of. The Court interpreted the patenting of such life to be outside of the purpose and objectives of the Patent Act. To read-in higher life into the act would be beyond the authority of the Court and would be a massive change in the current patent regime. Given the significant public policy issues it would be best settled by the legislature. Only through direct legislation should such an interpretation of the Act be applied.
Dissent
In a strong dissent written by Binnie J. with McLachlin, Arbour, and Major JJ. concurring, they agreed with the reasoning of the Court of Appeal which used similar reasoning found in the US case of Diamond v. ChakrabartyDiamond v. Chakrabarty
Diamond v. Chakrabarty, , was a United States Supreme Court case dealing with whether genetically modified organisms can be patented.-Background:...
. Binnie harshly criticized the distinction between "compositions of matter" and biological life, claiming that the majority is not giving enough deference to government and that it is the legislature's role to legislate exceptions to the Patent Act.
See also
- List of Supreme Court of Canada cases (McLachlin Court)
- Monsanto Canada Inc. v. SchmeiserMonsanto Canada Inc. v. SchmeiserMonsanto Canada Inc. v. Schmeiser [2004] 1 S.C.R. 902, 2004 SCC 34 is a leading Supreme Court of Canada case on patent rights for biotechnology. The court heard the question of whether growing genetically modified plants constitutes "use" of the patented invention of genetically modified plant...