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Cancer Mouse Not Patentable in Canada

Posted by timothy on from the say-onco-say-onco dept.

Proaxiom writes "The Globe and Mail is reporting the Supreme Court of Canada ruled today that OncoMouse, the so-called 'Harvard Mouse' that is especially prone to cancer, cannot be patented under Canadian law. The hapless rodent still enjoys patent protection in the U.S., Japan and much of Europe. So there is at least one place where higher life forms cannot be patented, but I am not familiar enough with the intricacies of international intellectual property treaties to figure out the consequences of the discrepancy. I'm sure countless IANAL's will be willing to offer opinions."

17 of 384 comments (clear)

  1. Read the judgement here: by Saint+Aardvark · · Score: 5, Informative

    http://www.lexum.umontreal.ca/csc-scc/en/rec/html/ harvard.en.html

    --
    Carousel is a lie!
  2. Mouse not patentable, but Canola is? by Slashdolt · · Score: 5, Informative

    Correct me if I'm wrong, but I believe that this is the same country in which the farmer was sued for using seeds from last year's canola crop, rather than buying them (again) from Monsanto.

    1. Re:Mouse not patentable, but Canola is? by jaeson · · Score: 5, Informative

      Actually he didn't buy anything from Monsanto. His argument was that his rapeseed(canola) crop was cross pollinated by Genetically Modified variants in neighboring fields. Monsanto argued that since they owned the copyright on the GM rapeseed, that the farmer was in violation of their copyright. Amazingly enough Monsanto won the case.

      Monsanto is being counter-sued for contaminating his crop. If there is any justice, they will have to cough up some big $$$ for it.

      I too thought the Canadian justice system wouldn't be as bad as our own, but it goes to show you how fscked up any government can be when idiots are making the decisions (Go USA!!!)

    2. Re:Mouse not patentable, but Canola is? by El+Christador · · Score: 2, Informative

      >The unpleasant thing about the Monsanto case was >that there was no evidence that the farmer had >done anything wrong.

      I don't know that I'd agree with "no evidence". The farmer himself testified that when he suspected there was glyphosate resistant canola growing in part of one of his fields, he then went and sprayed a larger area with glyphosate. He then took the seeds from the plants that survived the spraying and planted his entire next year's crop with them. This established that the presence of the genetically modified canola growing in his fields the next year -- which is the crop that was found to infringe the patent, not the crop from the previous year -- was planted deliberately and with full knowledge of its glyphosate resistant properties. I can't see how one could put any construction on the farmer's behaviour, as he himself described it, other than that he wanted to farm the genetically modified canola but didn't want to pay the licence fees.

  3. The mouse isn't patented... by puppetman · · Score: 3, Informative

    but the biochemical method for manipulating the genese of the mouse to create the Harvard mouse is.

    1. Re:The mouse isn't patented... by AndyMan! · · Score: 5, Informative

      but the biochemical method for manipulating the genese of the mouse to create the Harvard mouse is.

      Actually, the mouse is. Specifically, the patent covers the offspring of the mice as well. Indeed, it ALSO covers the offspring of other animals that were bred with the mice.

      Read the article.

      _Am

  4. No Direct Consequences by sleeperservice · · Score: 4, Informative

    Patent law tends to be highly compartmentalized between nation-states and as such the Canadian ruling will probably have little direct effect on the patents held in other countries.

    The most it may do would be to keep alive the debate over whether higher life forms can actually be patented. And then, of course, there's the possibility of companies moving research in this area to Canada to avoid licensing costs.

    All of that said, I feel sorry for the mouse. :(

  5. Canola oil seed different from a mouse by dgerman · · Score: 5, Informative

    From the ruling:

    "Although Parliament enacted special legislation for the protection of plant breeders, it did not address other higher life forms. Moreover, the passage of the Plant Breeders' Rights Act demonstrates that mechanisms other than the Patent Act may be used to encourage inventors to undertake innovative activity in the field of biotechnology.[...] If a special legislative scheme was needed to protect plant varieties, a subset of higher life forms, a similar scheme may also be necessary to deal with the patenting of higher life forms in general. It is beyond the competence of this Court to address in a comprehensive fashion the issues associated with the patentability of higher life forms."

    In other words, patents related to plants have their own set of laws. They were not meant to include animals and the Supreme Cort does not want to take the responsibility of something that Parliament should do.

    At least, that is my interpretation :)

  6. Re:Mouse Smuggling by Anonymous Coward · · Score: 3, Informative

    can't export them to the U.S.

    As they violate a U.S. patent.

    So, companies can do research with them cheaper in Canada and the results CAN be used in the U.S.

    But the mice cannot be exported to ny country where the patent stands.

  7. IP treaty law by watchful.babbler · · Score: 4, Informative
    The main focus of most international patent treaties is the normalization of laws between nations. In this case, NAFTA Article 1709 (3) is probably controlling vis a vis the United States:
    A Party may exclude from patentability inventions if preventing in its territory the commercial exploitation of the inventions is necessary to protect ordre public or morality * * * provided that the exclusion is not based solely on the ground that the Party prohibits commercial exploitation in its territory of the subject matter of the patent.
    NAFTA (and WTO/TRIPS) explicitly include only microorganisms and plants in their patentability requirements, so technically Canada is free to deny patent coverage to the oncomouse. However, if I were corporate (or industry) counsel, I'd bring suit in the NAFTA tribunal on the grounds that Canada is violating 1709(3) by effectively prohibiting the exploitation of biotechnology by ruling that bio-engineered animals don't qualify for invention protection. It's a questionable argument at best, but cases have been won at the tribunals with far less.

    This will become an issue as biotech organisms start appearing en masse (whenever that might be). Right now, there's no real incentive to produce, in Canada, nonpatented oncomice, simply because most of the countries to which you'd export (e.g., the U.S., Japan) would allow infringement suits. As the suite of gengineered organisms expands, however, expect a great deal of political and legal pressure for Canada to fall in line with the other states.

    --
    "Freedom is kind of a hobby with me, and I have disposable income that I'll spend to find out how to get people more."
  8. Not copyright.. patent. by mindstrm · · Score: 5, Informative

    It was a patent issue.

    And it's not that far fetched that they won; it wasn't an "accident". The guy KNEW it was monsanto's seed. It wasn't forced on him. He knew they had a patent on it as well. He took the gamble.

    What you have to realize is that the legal system is not as convoluted in Canada. Though this time, the guy might have been found to be doing something wrong, under slightly different circumstances, monsanto would lose (say, if the guy really had no idea it had happened).

    You can't just compare one ruling and declare the Canadian justice system to be as screwed up as the US. Remember, we have 10x less population, over a larger area, and a system that is *FAR* more flexible and less complex than the US system. Not everything is Black & White in the Canadian legal system, nor do we pretend it is.

    1. Re:Not copyright.. patent. by MikeLRoy · · Score: 2, Informative

      Yes, he "purposefully" planted what he knew to be seeds accidentally bread with monsanto genes. The reason he did it is that he could not afford not to plant a crop. Farmers may gross hundreds of thousands of dollars, but they don't net anymore then you or me. Most can't afford to go a year without a mainstay crop like canola. The point was that this farmer couldn't go out of his way to protect monsanto's patent. He needed a crop. Period.

      --
      -Michael Roy Some people are like Slinkies. Not really useful, but you can't help smiling when you see one tumble down
    2. Re:Not copyright.. patent. by stephanruby · · Score: 3, Informative
      It was a patent issue.

      The disagreement wasn't over the patent, the disagreement was over a fact. The judge felt the defendant was lying. Again, the defendant didn't lose because of a legal technicality -- He lost because the judge thought he was lying.

      "...Justice MacKay concluded that Mr. Schmeiser's arguments were implausible. "
      http://www.seedquest.com/News/releases/2002/may/44 76.htm

  9. Patents & TMs in Canada by vorwerk · · Score: 5, Informative

    FYI, in Canada:

    1) Medical procedures are not patentable. This is basically to prevent the formation of a monopoly on a life-saving procedure. (e.g., If someone invented a procedure to repair spinal cords, she couldn't patent it and charge a zillion dollars, because that would limit poor people's access to the technique.)

    2) A life-saving drug (e.g., cure for cancer), if they're the only such life-saving drug available, is not patentable.

    3) Some drug patents and trademarks seem to be quickly lost in Canada (while others are not). In the U.S., the trademark "Aspirin" has been lost to common use, so any generic manufacturer can claim that they make aspirin. Not so in Canada -- only Bayer can claim this trademark. In terms of patents, we have lots of generic drugs being manufactured that I don't think they can offer in generic form in the U.S. yet (e.g., generic forms of Reactine & Allegra). Not that I'm complaining -- our drugs are dirt cheap in comparison to what U.S. citizens pay (e.g., a month's supply of Claritin in the U.S. costs over $90 USD according to a recent Reuters article, but costs me only about $18 CAD -- this is due, in part of course, to the fact that it has been available over the counter here for some time ... but you get the drift).

    For more comparisons of patent law differences:

    http://www.dww.com/articles/how_do_you.htm

    -kris

  10. Re:Go Canada! by Anonymous Coward · · Score: 2, Informative

    Especially after calling George W a moron

    So it's OK for an American (Bill Mahr) to call him a moron, but not OK for someone else?

    The problem is that he IS a moron.

  11. Re:State by b-baggins · · Score: 1, Informative

    If more people actually understood our system of government, you'd know that the term State in the United States was not chosen arbitrarily.

    We were supposed to be a republic of united federated states under a limited central authority.

    We started out similar to what the European Union is designed to be.

    Prior to the Franklin Roosevelt era, our federal government was much, much, much more insignificant in daily life. States ruled supreme.

    --
    You can tell a great deal about the character of a man by observing those who hate him.
  12. Re:Cool by fishboy · · Score: 2, Informative

    just for your enlightenment and info:

    as opposed to "quebecoi", québecois is the singular when referring to an individual citizen of québec. they sound the same, the s is silent. kay-beck-wah. everyone together.

    quebecois is also used to refer to the citizens of quebec as a whole, as in "the quebecois have a way with women and poutine."

    québecoise (pronounced kay-beck-woz) is the plural of québecois, in reference to groups of individual québecois.

    the american vernacular for québecois is québecker; québecoise, quebeckers.

    vive le québec libre.