[d@DCC] Patenting Mice

[Jason Young]

>This logic needs to be extended from animals to plants (IE: deal with
>the Monsanto-seed problem that is causing considerable problems for
>farmers)

Here's the decision: Harvard College v. Canada 2002 SCC 76, online: 
LexUM http://www.shorl.com/gupukutyhabry.

The court's finding can be summed up thusly: regardless of whether 
the Court thinks the oncomouse is deserving of patent protection, the 
language of the Act does not permit it and the significant values 
implicated by such a finding dissuades the Court from reading in that 
intent. It is up to Parliament to situate the line between lower life 
forms and higher life forms, including humans, with regards to 
patentability.

At para. 169:

Created in 1999, the government created the Canadian Biotechnology 
Advisory Committee (CBAC) with a mandate to provide advice on policy 
issues associated with biotechnology. In June 2002, the CBAC released 
its final report, The Patenting of Higher Life Forms and Related 
Issues http://www.cbac-cccb.ca/documents/en/E980_IC_IntelProp.pdf. 
The report recommends that higher life forms should be patentable. 
Nonetheless, it concludes, at p. 7, that given the importance of 
issues raised by the patenting of higher life forms and the 
significant "values" content of the issues raised, Parliament and not 
the courts should determine whether and to what degree patent rights 
ought to extend to plants and animals.

The court also discusses the innocent by-stander problem encountered 
when Monsanto GM seeds reproduce outside the control of the 
patent-holder or licensee in paras. 170-172.

Two of the issues addressed by the CBAC (farmers' privilege and 
innocent bystanders) arise out of the unique ability of higher life 
forms to self-replicate. Because higher life forms reproduce by 
themselves, the grant of a patent covers not only the particular 
plant, seed or animal sold, but also all of its progeny containing 
the patented invention. In the CBAC's view, this represents a 
significant increase in the scope of rights offered to patent holders 
that is not in line with the scope of patent rights provided in other 
fields (Patenting of Higher Life Forms and Related Issues, at p. 12).

One significant concern arising out of the increased scope of patent 
protection is the impact that it will have on Canada's agricultural 
industry. The CBAC recommends that a farmers' privilege provision be 
included in the Act. The privilege would permit farmers to collect 
and reuse seeds harvested from patented plants and to breed patented 
animals for their own use, so long as these were not sold for 
commercial breeding purposes. Although the CBAC puts forward 
suggestions pertaining to the general nature of such a provision, it 
nonetheless recognizes that more work would need to be done to 
identify the extent of the privilege in relation to plants and 
animals.

Another concern identified by the CBAC in respect to self-replication 
pertains to infringement. The CBAC observes that since plants and 
animals are often capable of reproducing on their own, it must be 
recognized that they will not always do so under the control or with 
the knowledge of those who grow the plants or raise the animals. 
Patent law does not currently require a patent holder to prove that 
an alleged infringer knew or ought to have known about the 
reproduction of a patented invention. An "innocent bystander" may 
therefore be faced with high costs to defend a patent infringement 
suit and an award of damages for infringement without a 
countervailing remedy against the patent holder. The CBAC 
correspondingly recommends that the Patent Act contain a provision 
that would allow the so-called "innocent bystander" to rebut the 
usual presumption concerning knowledge of infringement in respect of 
inventions capable of reproducing, such as plants, seeds and animals.

>As to the date of the Patent act:
>
>http://laws.justice.gc.ca/en/P-4/  Patent Act ( R.S. 1985, c. P-4 )

This date refers to the last time it was amended. The 1869 date 
refers to the last time the definition of "invention", on which the 
case turned, was amended (or adopted, I'm not sure which it was).
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