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Harvard's Cancer-Research Mouse Denied Canadian Patent

by Desmond Pickering, LawandTax-News, New York

05 December 2002


Harvard University's genetically-engineered cancer research mouse, which is patented in the US, Japan and parts of Europe, has been refused a Canadian patent.

The Supreme Court of Canada, in a 5-4 decision, ruled that higher life forms do not fall under the century-old Patent Act's definition of an invention. "The act in its current form fails to address many of the unique concerns that are raised by the patenting of higher life forms," said the Court.

The Harvard mouse was genetically manipulated nearly 20 years ago to be more susceptible to tumours, thus speeding up results in laboratory tests on mice.

Harvard's patent application in Canada has pursued a tortuous path through the courts. In 1995, the Commissioner of Patents ruled that the mice were not patentable in Canada, although the trial division of the Federal Court later ruled that the biochemical processes used to alter the mouse's genes could be patented. The Federal Court of Appeal, however, said that both the processes and the mouse should get patent protection.

Animal rights groups were cock-of-the-hoop (so to speak) after the decision, but BIOTECanada president Janet Lambert said in a statement: "This decision stops our pursuit of knowledge and innovation dead in our tracks." Indeed, it's easy to imagine a rapid exodus of Canadian bio-tech R & D for more welcoming regimes, for instance towards the US.


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