Reflections in a Darkling Glass: A Comparative Contemplation of the Harvard College Decision

REFLECTIONS IN A DARKLING GLASS: A COMPARATIVE CONTEMPLATION OF THE HARVARD COLLEGE DECISION Dan L. Burk* I. INTRODUCTION In its landmark 2002 decision Harvard College v. Canada (Commissioner of Patents),' the Supreme Court of Canada declined to extend the subject-matter of the Canadian Patent Act to include higher , or multicellular organisms. The majority opinion penned by Bastarache J. sidestepped the question of whether lower or single-celled organisms fit within the Act, but reasoned that the subject-matter categories art, process, machine, manufacture or composition of matter recited in the Act are exhaustive rather than illustrative, and that transgenic animals cannot fit the common definition of the categorical language. In particular, despite a master- fully reasoned dissent by Binnie J., the judgment reasoned that Parliament had not considered higher or multicellular transgenic organisms when enacting the patent statute. Clearly worried over the environmental, social and moral questions raised by the new technology, the majority further concluded that the structure of the Patent Act reflects no legislative consideration of such questions, and legislative consideration is required before such creatures could be covered by the Act. Comparison of the judgment to the previous United States Su- 2 is perhaps inevita- preme Court case of Diamond v. Chakrabarty ble. Nearly 20 years before the Canadian decision, the landmark Chakrabarty opinion launched a new era of U.S. biotechnological * Copyright 2003 by Dan. L. Burk, Oppenheimer, Wolff & Donnelly Professor of Law, University of Minnesota. My thanks to Boalt Hall Law School at the University of California, Berkeley, and to the University of Minnesota Law School for their financial support in conducting this research. My special appreciation goes to the staff of the law libraries at Boalt Hall and University of Minnesota for literary sleuthing above and beyond the call of duty. 1. (2002), 219 D.L.R. (4th) 577, 21 C.P.R. (4th) 417 (S.C.C.). 2. 447 U.S. 303 (1980).

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