Harvard College v. Canada (Commissioner of Patents)

众律国际法律事务所  专利工程师暨法务专员林春宏

美国柏克莱加州大学 分子生物学士

美国柏克莱加州大学 信息管理 硕士

加拿大英属哥伦比亚大学 法律博士

2012-12-13

Harvard College v. Canada (Commissioner of Patents) [2002] 4 S.C.R. 45, 2002 SCC 76 is a leading case concerning the patentability of higher life forms in Canada, which was decided by the Supreme Court of Canada in 2002.  The case involves the Harvard OncoMouse, a genetically modified mouse designed in the laboratory of Professor Philip Leder and Timothy Stewart of Harvard University.  The mouse was modified to carry an activated oncogene, which promotes tumor growth and increases the mouse’s susceptibility to cancer.  Harvard filed patent applications for the OncoMouse in many countries including the United States, Canada, Europe (European Patent Office), and Japan.

In Canada, the patent application was rejected by the Commissioner of Patents on the grounds that higher life forms were not inventions under section 2 of the Canadian Patent Act, which stipulates that an invention “means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.”

The case was appealed to the Federal Court of Appeal, which agreed with Harvard that the OncoMouse should be a patentable subject matter.  However, the Supreme Court of Canada, in a 5 to 4 decision, ruled that the transgenic mouse and other higher life-forms are not patentable under the meaning of "invention" in section 2 of the Patent Act.  Subsequently, Harvard amended the patent application to avoid certain claims of higher life forms to be consistent with the ruling of the Supreme Court and was able to receive a Canadian patent.

Reference:

http://www.law.yale.edu/documents/pdf/Intellectual_Life/Harvard_College.pdf