Harvesting the "Forbidden Fruit" of Biotechnology Research: Genetic Engineering, International Law and the Patentability of Higher Life Forms in Canada
Bibliographic record
Abstract
As the frontiers of science are constantly redefined by the emergence of new technology, patent law often has to struggle to keep pace with the changing conception of what constitutes a protectable "invention".A key challenge facing patent law in the age of biotechnology lies in ascertaining the extent to which genetically engineered life forms should be protected.A major concern relates to whether such life forms should be excluded from patentability on grounds of ordre public, ethics and morality.This article critically explores the extent to which patent law in Canada protects this "forbidden fruit" of biotechnological innovation, and compares the position in Canada with that of the United States and the European Union.The author argues that recent Canadian jurisprudence in the field of biotechnology law has brought the Canadian position more in line with patent developments in other industrialized nations, although there continue to be differences in the formal definition of "patentable subject matter".The groundbreaking decision by the Supreme Court of Canada in Monsanto v Schmeiser marks the emergence of a more permissive approach toward the patentability of genetically modified inventions -an approach that is more compatible with patent practices in the United States and the European Union than the position taken earlier by the same court in Harvard College v Canada.However, while genetically modified cells and genes are now eligible for patent protection in Canada, entire organisms remain unpatentable under existing Canadian law.Practically speaking, the distinction drawn by the Schmeiser court between genetically modified "components" and genetically modified "life forms" is artificial, because a patent over a genetically modified cell effectively gives a patentee de facto control over the commercial exploitation of the entire organism.This article proposes that Canada should jettison this artificial distinction and explicitly recognize life forms as patentable subject matter if it wishes to play a more influential role in trade agreements such as the Trans-Pacific Strategic Economic Partnership (TPP).Embracing "life forms" as a category of patentable subject matter would also make Canada a more attractive * School of Law, City University of Hong Kong.This article was inspired in part by a series of lectures that the author delivered on Canadian patent law and biotechnology in Toronto.The author wishes to thank his students, past and present, for their insightful thoughts on the Schmeiser decision and its impact on biotechnology law in Canada.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.003 | 0.010 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.004 |
| Science and technology studies | 0.029 | 0.019 |
| Scholarly communication | 0.017 | 0.004 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.005 | 0.007 |
| Insufficient payload (model declined to judge) | 0.006 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".