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Can You Patent Life Forms In Canada?

Can You Patent Life Forms In Canada?

Patents are crucial to those involved in innovation. Although not every single invention is patented obtaining patents for novel inventions can  lead to a competitive edge in the marketplace. But, what can you patent? Canadian Law dictates that any novel and useful invention or improvement on existing inventions can be patented. An invention can be a manufactured product, composition, machine or process.  In common knowledge, these could be anything from a phone to a life form (in the case of scientific research and inventions). While you can patent a phone or its unique processes, can you patent life forms? Let us have a look.

Harvard College v. Canada (Commissioner of Patents)

Harvard College v. Canada (Commissioner of Patents) is a leading Supreme Court case concerning the patentability of higher life forms. The case was regarding the patentability of the Harvard’s Oncomouse, a mouse that had its genome genetically modified by a cancer-promoting gene. In 1985, Harvard College had applied for a process patent for the method by which they modified the mice and also a patent for the end product, i.e., the genetically modified mice. While the process patent was granted, the product patent was rejected on the grounds that higher life forms were outside the definition of invention and therefore not patentable. The matter was eventually passed on to the Supreme Court. The Supreme Court upheld the decision of the Commissioner of Patents that higher life forms are not patentable. The question before the court was whether the words ‘manufacture’ and ‘composition of matter’ are broad enough to encompass higher life forms. The court’s answer was "no".

Patenting Life Forms – Can you or Can you not?

Considering the above-mentioned case, it is clear that higher life forms cannot be patented in Canada. Two years after the ruling of the case, the Supreme Court revisited the patentability of higher life forms in Monsanto Canada Inc. v. Schmeiser. The case dealt with an infringement claim based on Schmeiser’s use of a plant which contained a genetically modified cell whose patents were held by Monsanto. The case was ruled in the favour of Monsanto’s patent protection. In a way, the ruling in this case contradicted the judgment passed in Harvard College. Here, the court effectively patented a life form – the genetically modified plant.

Concluding these cases, although the advent of genetic engineering has thrown challenges at the Canadian Patent system, the patentability of non-human life forms like mammals, plants, and other multi-cellular organisms is a clear no. However, certain life forms are still patentable. Lower life forms like bacteria, fungi, and cells from multi-cellular organisms are potentially patentable. Also, genes introduced through genetic modification are applicable for patents. In addition to these, the process of producing higher life forms through genetic engineering can also be patented.

Patents are a complicated legal subject. To patent life forms, you require a good understanding of the subject and the legalities surrounding it. Consulting a patent agent could be helpful in understanding and determining whether your invention is patentable.

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