A Canadian federal court judge has ruled that Harvard University's ‘oncomouse’, which was genetically engineered to be susceptible to cancers, and the rights to which are now owned by DuPont, is not patentable in Canada.
After receiving a US patent on both the biotechnology process used to ‘create’ the oncomouse and on the mouse itself, Harvard's president and university fellows had applied for a Canadian patent — the first such patent sought in this country for a mammal.
The patent office had accepted the claim for the genetic engineering process, but it rejected the claim on the mammal itself. Harvard appealed to Canada's federal court. But Judge Marc Nadon has dismissed the appeal, saying: “They have created a method to inject eggs with a myc gene but they have not invented the mouse.”
Nadon said that parliament could alter legislation so that mammals can be patented if it wishes. But he said that he was not prepared to manipulate the meaning of the words of the Patent Act to the degree currently necessary to do so.
Michelle Swenarchuck, counsel and director of international programmes at the Canadian Environmental Law Association, says: “Justice Nadon has correctly placed this matter at the door of elected officials.” Harvard is expected to appeal against the judge's ruling, taking the issue to Canada's supreme court if necessary.