From Pasteur to 'Monsanto': approaches to patenting life in Canada

Abstract

Few would dispute that one of the main rationales of all patent regimes is to encourage the development of new 'inventions', to promote innovation by direct reward (the grant of the monopoly from the state), and to ensure the dissemination of information required to stimulate further invention. It is usually stated from the utilitarian perspective by the courts: "There is no doubt that two of the central objects of the Patent Act are 'to advance research and development and to encourage broader economic activity'." It is notable that the Canadian courts are recently giving recognition to the wider theoretical basis for the state granting Intellectual Property rights to inventors, authors, and traders, in particular the sense that there are balancing 'user rights' for the consumers and the users of the material protected by intellectual property rights. In the realm of biotechnology, however, there have been some problems in the application of these tenets, whether the new or the old. The objective of promoting innovation has been met with the denial of patents on 'higher lifeforms', and user rights restrained by a broad interpretation of 'use'. The last few decades have seen the discussion of transgenic lifeforms come to the fore, in the media, a Canadian Government advisory committee, and not least in the courts. In 'Harvard', the Supreme Court of Canada denied a patent on a transgenic mouse that was undoubtedly an innovation, and in 'Monsanto', the same court found infringement in the use of a transgenic cell in a plant.