Harvesting the “Forbidden Fruit” of Biotechnology Research: Genetic Engineering, International Law and the Patentability of Higher Life Forms in Canada

As the frontiers of science are constantly redefined by the emergence of newtechnology, patent law often has to struggle to keep pace with the changing conceptionof what constitutes a protectable “invention”. A key challenge facing patentlaw in the age of biotechnology lies in ascertaining the extent to which geneticallyengineered life forms should be protected. A major concern relates to whethersuch 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 inCanada protects this “forbidden fruit” of biotechnological innovation, and comparesthe position in Canada with that of the United States and the EuropeanUnion. The author argues that recent Canadian jurisprudence in the field of biotechnologylaw has brought the Canadian position more in line with patent developmentsin other industrialized nations, although there continue to be differencesin the formal definition of “patentable subject matter”. The groundbreaking decisionby the Supreme Court of Canada in Monsanto v Schmeiser marks the emergenceof a more permissive approach toward the patentability of genetically modifiedinventions — an approach that is more compatible with patent practices in theUnited States and the European Union than the position taken earlier by the samecourt in Harvard College v Canada. However, while genetically modified cells andgenes are now eligible for patent protection in Canada, entire organisms remainunpatentable under existing Canadian law. Practically speaking, the distinctiondrawn by the Schmeiser court between genetically modified “components” and geneticallymodified “life forms” is artificial, because a patent over a geneticallymodified cell effectively gives a patentee de facto control over the commercial exploitationof the entire organism. This article proposes that Canada should jettisonthis artificial distinction and explicitly recognize life forms as patentable subjectmatter if it wishes to play a more influential role in trade agreements such as theTrans-Pacific Strategic Economic Partnership (TPP). Embracing “life forms” as acategory of patentable subject matter would also make Canada a more attractive destination for biotechnology investment.