Intervenor: vol. 26, no. 4 September - December 2001

CELA In The Courts - The Harvard Oncomouse Case

CELA has obtained leave to intervene in the Supreme Court of Canada in this case together with Greenpeace, CAPE (Canadian Association of Physicians for the Environment), CIELAP (Canadian Institute for Environmental Law and Policy) and the Action Group on Erosions, Technology and Concentration (formerly RAFI). This is the precedent case in Canada regarding whether Canada will allow the patenting of higher life forms, in this case, a genetically-modified mammal.

Harvard University applied for a patent on its genetically engineered (GE) mouse, modified to develop cancer to be used in research. Although the U.S. grants patents on animals, Canada did not do so until Harvard obtained a decision in its favour from the Federal Court of Appeal. This decision is being appealed to the Supreme Court.

The Canadian Patent Office grants patents on single-cell life forms, including human cell lines and genes, but not on multicellular "higher" life forms. Unknown to many, Harvard got a patent on the mouse that it developed and also on all other non-human mammals ("from a shrew to a whale" including all primates) which it might theoretically modify in the same way in the future.

In our intervention, we will be arguing that the Court should not grant the patent, but rather, maintain the current practice in Canada of not patenting higher life forms. This is a matter that involves many important public issues, and a decision on whether or not to make this change in the law should only be made after a full public debate and examination of impacts and alternatives. Such a full examination is not possible in this legal proceeding but should be conducted by Parliament in a review of the Patent Act.

We will be presenting scholarly writing and argument to the Court about three areas of public interest in such patents:

  • environmental and health risks of the biotechnological interventions that are the subject of these patents;
  • the lack of equitable sharing of genetic resources due to the exclusive property interest of holders of such patents; and
  • that patents are increasingly causing barriers to the free and rapid dissemination of science research results.

The case will probably be heard late in 2002.

Paul Muldoon is a lawyer at CELA