Harvard Mouse Not Patentable In Canada

December 5, 2002 7:59 AM

Harvard Mouse Not Patentable In Canada The Supreme Court of Canada ruled in a 5-4 judgement Thursday that the so-called Harvard mouse cannot be patented in Canada. The decision here.
posted by drew_alley (6 comments total)

Listening to a debate about this issue on CBC Radio this morning, it was pointed out that since this is already 'patentable' in most other western nations, Canada's decision isn't particularly significant.

That said, as someone passing judgement without really understanding the issue, I'm pleased with the decision of my Supreme Court.
posted by stevengarrity at 8:36 AM on December 5, 2002

It's a good decision: The process to create the mouse and the specific genes involved have already been granted a Canadian patent; but the mouse itself is _not_ patentable. A good compromise.
posted by lupus_yonderboy at 9:08 AM on December 5, 2002

I didn't read the decision as it's presented here, but I'll say something about it anyway.

First of all, I am very happy this case was handed down after my last Patents class, because it means it won't be on the exam, though I'm sure it would be handy for me to know about it.

Without having read the decision at all, here's my theory on why it was decided the way it was decided. The judge who wrote the majority decision, Madame Justice L'Heureux-Dube (known not so affectionately to law students as LHD), is infamous for writing long complex judgements that take into account all sorts of extraneous social factors. I try not to ever read her judgements because I never understand them, but I know that she's coming from a strong feminist and egalitarian perspective.

So my theory is that, though she may have couched her judgement in terms of statutory interpretation in order to read "higher life form" out of the list of permitted patentable material, she was actually thinking along the lines that permitting any kind of intellectual property right in a higher animal could lead to permitting intellectual or other property rights in humans, and that we don't want to go there. So she decided the way she did because of a concern for human rights and animal rights, and then found the right caselaw and statute sections to support her finding from a black-letter law perspective.

By the way, I'm not criticizing the way I think she reached her judgement, judges decide cases this way all the time.
posted by kate_fairfax at 10:31 AM on December 5, 2002

A lawyer friend sent me the key paragraph in the ruling:

163 It also is significant that the word "matter" captures but one aspect of a higher life form. As defined by the Oxford English Dictionary, supra, vol. IX, at p. 480, "matter" is a "[p]hysical or corporeal substance in general..., contradistinguished from immaterial or incorporeal substance (spirit, soul, mind), and from qualities, actions, or conditions". "Matière" is defined by the Grand Robert de la langue française, supra, vol. 4, p. 1260, as "[TRANSLATION] "corporeal substance `that is perceptible in space and has mechanical mass'". Although some in society may hold the view that higher life forms are mere "composition[s] of matter", the phrase does not fit well with common understandings of human and animal life. Higher life forms are generally regarded as possessing qualities and characteristics that transcend the particular genetic material of which they are composed. A person whose genetic make-up is modified by radiation does not cease to be him or herself. Likewise, the same mouse would exist absent the injection of the oncogene into the fertilized egg cell; it simply would not be predisposed to cancer. The fact that it has this predisposition to cancer that makes it valuable to humans does not mean that the mouse, along with other animal life forms, can be defined solely with reference to the genetic matter of which it is composed. The fact that animal life forms have numerous unique qualities that transcend the particular matter of which they are composed makes it difficult to conceptualize higher life forms as mere "composition[s] of matter". It is a phrase that seems inadequate as a description of a higher life form.

posted by stevengarrity at 3:52 PM on December 5, 2002

That key paragraph is interesting. Of course, it's nonsense that "animal life forms have numerous unique qualities that transcend the particular matter of which they are composed". This is either vitalism, which is discredited to the point of seeming archaic, or some form of spirituality. Everything in and about a living creature is a consequence of the composition and organization of matter in that creature, "common understandings" be damned.

What is true, however, is that a living thing cannot be represented completely by it's genetic makeup. There are innumerable complex interactions between the environment and this genetic foundation, taking place over the entire lifetime of a biological entity, that lead to the particular composition and organization of matter that is that entity. In other words, the ability to determine the genetic makeup of a creature is not the same as the ability to determine everything about a creature; therefore, "owning" a particular genetic makeup is not the same as "owning" a particular mouse. This is an excellent point, and it's made very sharply in the decision. If only it weren't for the vitalist hooey.

If instead of writing "...that transcend the particular matter of which they are composed" she had written "...that emerge from complex interactions of the matter from which they are composed and the environment in which they exist", I would be utterly delighted.
posted by mr_roboto at 5:24 PM on December 5, 2002

Synergy is a form of transcendence.
posted by 4easypayments at 8:10 PM on December 5, 2002