The issue of the patentability of life forms has been surrounded by various ethical concerns. Recent controversies in the United States have called into question the cultural correctness of patenting certain types of living matter.
In March 1999, leaders of various Amazonian indigenous tribes challenged a decision by the U.S. Patent Office to issue a patent for a sacred plant, native to the Amazon, called ayahuasca. A strain of the plant was patented by an American researcher, Loren Miller, in 1986. The plant is being researched for its medicinal value. Representatives for the challenger groups have argued that the patent is a form of theft of the tribes cultural property.
Another recent debate involved a U.S. patent for medicinal uses of the traditional Indian spice plant, turmeric. The patent was the subject of protest in India because the "novel" medical techniques claimed had been practiced in that country for centuries. In 1997, the U.S. Patent Office cancelled the turmeric patent.
Other controversies have plagued U.S. patents for the active ingredient of the neem tree and a modified strain of Indian Basmati rice.
Perhaps the most contentious case in the last few years involves a patent for the cell line developed from blood taken from a member of the Hagahai tribe of Papua New Guinea. The cell line has interested researchers as a possible link to future leukemia treatments. Under protest of "genetic imperialism," that patent was withdrawn in 1996 by the applicants, the U.S. National Institutes of Health.
Canada has taken a more conservative approach to life form patenting than the U.S. Since the Supreme Court of Canada decision in Pioneer Hi-Bred v. Commissioner of Patents, plants and seeds themselves are not considered patentable subject- matter. However, in the recent decision of Harvard College v. Commissioner of Patents, the Federal Court of Appeal held that the genetically engineered mouse did constitute a patentable invention. The court found that the mouse was a composition of matter that was new, nonobvious, and useful and that an invention could combine human ingenuity with natural processes. The court did point out that although the law did not distinguish between the patentability of higher and lower life forms, human beings could not be patented because they were not property. The decision has been appealed to the Supreme Court of Canada and on June 14, 2001, application for leave to appeal was granted by the court. The appeal may impact the law on the patentability of other types of higher life forms, including plants and seeds.
Disclaimer: This Newsletter is intended to provide readers with general information on legal developments in the areas of e-commerce, information technology and intellectual property. It is not intended to be a complete statement of the law, nor is it intended to provide legal advice. No person should act or rely upon the information contained in this newsletter without seeking legal advice.
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