“A Mouse is a Mouse is a Mouse: A Comment on the Supreme Court of Canada’s Decision on the Harvard Mouse Patent”, (2003) 3 Oxford University Commonwealth Law Journal 105-118
On December 5, 2002, the Supreme Court of Canada handed down its long awaited decision in President and Fellows of Harvard College v. Canada (Commissioner of Patents). Known as the Harvard Mouse case, it had its genesis in the Canadian Patent Commissioner’s decision to deny a patent over a genetically engineered creature known as the “oncomouse”. The mouse, which has been patented in the United States, numerous European countries, and Japan, brought to the forefront in Canada the issue of whether a higher life form could be the subject of a patent. After dividing opinions below, the issue also split the Supreme Court of Canada, resulting in a somewhat surprising 5-4 ruling that the definition of “invention” in the Patent Act did not extend to include a higher life form such as the oncomouse. The split is a profound one. While the majority of the Court reflects what can almost be characterized as a precautionary approach to patenting higher life forms, the dissenting justices emphasize the economic and global imperatives of interpreting Canada’s patent legislation consistently with that of other Western nations, so as to recognize patents over virtually all forms of innovation. This paper is a comment on the decision in the case.