Canadian judges ask: when is a mouse not a mouse?

March 23, 2001

A patent for the cancer-resistant 'oncomouse' is being disputed. Philip Fine reports from Montreal.

A controversial patent case surrounding a genetically manipulated laboratory animal could soon be destined for Canada's highest court. The Supreme Court is expected to decide whether it will take on the patent case, which has already successfully passed through the federal appeals court.

The issue at hand is whether a mousegenetically manipulated to be susceptible to cancer should be considered an invention.

Not long after Harvard University scientists Philip Leder and Timothy A. Stewart first developed the "oncomouse," using a technique that builds a foreign oncogene into the genome of a mouse, the scientists were awarded a patent in the United States. But since 1985, the developers have had difficulty attaining the same commercial rights in Canada, having lost at the tribunal and at lower court level.

The only life forms to fall under Canada's patent law have been lower forms such as spores and bacteria. While courts were willing to patent the technique, no judge believed the act could be opened up to include animals.

Then, last August, Canada's Federal Court of Appeals ruled in favour of the Harvard professors. The appellant judge pointed out that a natural mouse differs from the Harvard mouse because of the man-made intervention that gives it a predisposition to cancer.

"The question is whether the oncomouse described in the patent claims would exist in nature. Clearly it would not," wrote Justice Marshall Rothstein, overruling the lower federal court decision that said the laws of nature had more to do with the mouse's development than any form of human ingenuity.

Chairman of the Patents' Appeal Board, Peter Davies, whose federal government office filed a motion to appeal, says it is important to take the case to the Supreme Court so the patent act can be properly interpreted.

But a lawyer for an intervenor in the case said the government was reluctant to go through with this challenge. Michelle Swenarchuk, director of international programmes for the Canadian Environmental Law Association, said there has been a lot of pressure from various government ministries involved in medical and agricultural biotechnology to drop the case. "They waited until the last day to file," she said.

Ms Swenarchuk says her organisation worries that the push to patent life forms is affecting the public's potential benefit to biodiversity's riches and also commodifying life. "The line between what exists in nature and what is patented has been blurred."

If the Supreme Court grants the leave to appeal this spring, the case is likely to be heard next year.

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