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

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.