Cancer Mouse Not Patentable in Canada

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."

Comments

Cool

[MacAndrew]

You can wander through the legalisms, but basically I've been uncomfortable with the overlap between the doman of patent law and, well, God (and/or whatever evolutionary variant one subscribes to -- I'm on the science side of the fence, but "God" is a heck of a lot more poetic).

I wonder if this could cause U.S.-Canadian tensions? The IP people in the states are riding high these days.

Re:Cool

[thirty-seven]

I wonder if this could cause U.S.-Canadian tensions?

I think you meant to say more tensions.

The US puts tarrifs on Canada's softwood lumber and talks about doing the same to its wheat. Sure they signed free trade agreements with Canada, but that doesn't mean they can't violate them whenever its convenient for them. And what can Canada do about this? Nothing, really. Especially since Bush is far more concerned about Mexico than he is with the USA's biggest trading partner, Canada.

Immediately after 9/11 Canadian firefighters, resue workers, ambulance crews, etc went to Manhatten to help. And Canada sent troops to help in Afghanistan, four of whom were killed because of the criminal negligence of two US pilots (according to the findings of both Canadian and US inquiries). Was any of this reported in the US? Not really, except for an American governor's fund raisers to help out the poor scape-goated American pilots. I wouldn't be complaining about this lack of recognition in the US for this good, neighbourly help provided by Canada, expect for the way that American officials and their media are more than willing to pounce on the smallest (or even non-existant) negative things. For example, after 9/11 a lot was made by top US officials about how lax Canadian security was and how this allowed the terrorists to enter the US via Canada, in spite of the fact that there was no evidence that any of the terrorists in fact entered from Canada. I fear to think what the reaction would be if some terrorists do enter the US via Canada and do complete a horrible attack - the Americans will have their proof of Canada's irresponsibly lax security, even though terrorists are clearly just as able to enter the US directly.

Also, consider the recent case of a non-elected Canadian government person, just a PR person for the Prime Minister, who in a private conversation with a reporter called President Bush "a moron". This comment got published, and within a few days CNN was talking about it with the caption "Canada: A threat?" on the screen while making much of the remark of a "senior official in the Canadian government".

I guess my point in all this is that, yes, if the US government doesn't like this patent decision to a sufficent degree, than you can expect to hear a lot in the US media about Canada's 'policy of flagrently disregarding US patent law'. Most likely you just won't hear anything about this in the US media, since most people won't care about this patent law/biology type of news.

Arguments against policy change?

[bwallace]

This ruling effectively throws the issue back into the laps of the politicians, who will undoubtedly be lobbied strongly by industry. Canadians who agree with this ruling need to lobby back. I recall the existance of a number of areas where medical progress has been held back in the US due to patents on higher life forms, but do not recall the details. Can anybody pass on pointers to these cases, so they can be used as arguments against a policy change by our elected officials?

Re:Mouse not patentable, but Canola is?

[HiThere]

Right. Probably a different court, though.

The unpleasant thing about the Monsanto case was that there was no evidence that the farmer had done anything wrong. It could have been pollen drifting in from the neighbors fields. (A bit unlikely, but not disproven.) The hypothesis that justified the ruling was that some seed had spilled by the roadside, and that he had planted that. Could be.

But it was a civil suit, and if Canada is like the US, then civil suits are decided on the perponderance of the evidence. And it was reasonable that he had reason to believe that his grain was the Monsanto variation. What isn't reasonable was that his claim that his own strain had been corrupted by foreign pollen wasn't considered relevant. He hadn't been intending to sell the strain, so it was given a value of nothing, even though he had been selecting it for decades.

Well, officially it was decided on the basis of (I think) patent law. But I think what really happened was that the judge decided that he swiped some seed, and looked for a reason to find him at fault.

Some Legal Implications

[praksys]

One of the key features of existing international treaties over intellectual property is the idea of "national treatment". Roughly speaking the idea is that nations have to treat non-nationals the same as nationals. For example, if Candian law grants Candian authors a copyright in their works for life + 50 years, then Candian law should grant the same sort of copyright, for the same term, to non-Candian authors. So national treatment is a pretty weak requirement - it allows nations to have any sort of intellectual property law they like, so long as that law does not discriminate between nationals and non-nationals.

As far as the national treatement requirement goes, the only constraint on Candian law in this case is that, if Canadian courts reject such patent claims made by US citizens/corportations, then they must reject similar claims made by Canadian citizens/corportations.

In addition to the national treatment requirement, treaties have also tried to establish certain standards concerning the nature and terms of intellectual property rights, but these IP standards do not get down to the details of what can or cannot be patented. In general these IP standards have been designed to avoid all the really difficult questions about intellectual property, and they tend to be weakly enforced in any case.

So, as far as these additional IP standards go, it is highly unlikely that this Candian court ruling will conflict with any of them.

However, the fact that Canadian courts have now taken up a position against this sort of patent makes it less likely that this sort of patent will ever make it into the IP standards established by *future* international treaties.

Re:Some Legal Implications

[freshwat]

Roughly speaking the idea is that nations have to treat non-nationals the same as nationals. Unfortunately, the NAFTA free trade agreement takes most of that away. Now a American company can sue the Canadian government for loss of profits even if the law applies to both Canadian nationals and foreigns. (and vica-versa I presume) There are some examples in environmental law. For example a manganese based gasoline additive was outlawed, and the American company that was the primary supplier for Canada sued under NAFTA and won compensation. I believe the additive was also illegal in the U.S.

Invention vs Discovery

[photon317]

I'm a big fan of the notion that there's a distinct if somewhat grey line between Invention and Discovery, and that only Invention should be patentable. Discovering a new species of mouse in the wild does not give one the right to patent it. Inventing a new species of mouse through genetic manipulation does, although it raises ethical questions, especially if applied to a more emotionally developed mammal like a dolphin, a dog, or a human.