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Canadian Supreme Court rejects patent for Harvard research mouse

(Thursday, Dec. 5, 2002 -- CropChoice news) -- AP: TORONTO - A divided Supreme Court ruled Thursday that Canada's 19th-century patent law prohibits Harvard University from patenting a cancer-prone mouse it developed for research.

The 5-4 decision is likely to cause the government to consider changing the patent law, which dates back to 1869, to include issues such as genetic engineering that have resulted from modern science and technology.

By rejecting a patent for the Harvard mouse, the Supreme Court prevented Canada from joining the United States, Europe and Japan in granting patent protection for a higher life form.

The court said the mouse fails to meet the definition of invention written into the federal Patent Act.

In writing the majority decision, Justice Michel Bastarache said: "The act in its current form fails to address many of the unique concerns that are raised by the patenting of higher life forms."

The case is expected to shape the government's evolving policy on cloning and genetic engineering. Legislation under consideration would ban cloning.

Canada has previously allowed patents for single-celled organisms such as bacteria bioengineered for specific industrial jobs.

Environmental groups praised the court decision, with Joanne Dufay of Greenpeace Canada calling it a "victory for life" that should be left unchanged.

"We don't think that Parliament should be acting on this," she said. "We think the court got it right that life forms are not patentable."

In arguments before the Supreme Court earlier this year, a lawyer for Harvard on Tuesday denied that allowing a patent for the genetically modified mouse was a step toward patenting cloned humans.

Laws including the Canadian Charter of Human Rights and Freedoms "protect the integrity of humans," David Morrow told the nine justices. By refusing to allow a patent for the research mouse, Canada was "out of step" with its major trade partners, Morrow said.

The government Commissioner of Patents opposed a patent for the Harvard mouse, saying the concept could spread to other living organisms.

"If you start treating a living organism as a mere composition of matter, there's nothing to stop us from treating all life forms in that way," said Graham Garton, representing the patent commissioner. "The danger is that we treat everyone and everything like a product."

The Harvard mouse, known as the Oncomouse and patented in the United States in 1988, was engineered to grow malignant tumors in order to study cancer. The "invention" was licensed to chemical giant Du Pont Co., which sells the mice to research labs.

The Canadian Intellectual Property Office ruled in 1993 that Harvard cannot patent the entire mouse or its offspring only related experiments and the gene that makes it susceptible to cancer. That judgment was upheld by the Commissioner of Patents and the Federal Court.

But the Federal Court of Appeal ruled in 2000 that nothing in the Patent Act, drafted in 1869, outlawed patenting animals.