I was looking for connections between science and the law when I stumbled upon the very interesting (and probably a little controversial) topic of genetically modified organisms. Here’s what I found…
The Harvard Mouse
The Harvard mouse is considered a landmark case because it’s an example of the limits of our patent laws. In Canada genes, individual cells, and microorganisms have been granted patents since the 1980s, However, something as complex as a mammal had not.
Harvard College created a process to insert a cancer causing gene in mice for research. They sought a patent for the process and the product (the mouse). The Americans allowed the patent but Canada was different. In 2002 the Canadian Supreme Court’s interpretation of the word invention made a higher life form , like a mouse, unpatentable. Canada became the first major jurisdiction to refuse to recognize the patentability of higher life forms. [Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76,  4 S.C.R. 45]
Monsanto Canada Inc.v. Schmeiser (SCC, 2004).
Just two years after the Harvard Mouse case came another important lawsuit. Since the 1980s, Canada has allowed the patenting of genes and individual cells (but not higher life forms). Crops like genetically modified canola have been patented. This means that if farmers want to grow them, they must pay the company that owns the patent.
One concern with genetically modified organisms is that the genetic material might spread outside its intended area. Seeds could travel by wind or the crop could cross-pollinate with the neighbouring field.
This is what Percy Schmeiser claimed when Monsanto took him to court for growing Canola that contained their patented herbicide resistant gene. He claimed that seeds from a neighbouring field landed on his land. Eventually the Supreme Court found that Schmesier had infringed on the patent by growing the crop. Schmeiser argued that the plant was a higher life form and could not be patented. The court agreed that a plant was a higher life form and could not be patented, but the herbicide resistant gene could be. Schmeiser was ordered to remove the canola from his land but was not forced to pay any money to Monsanto. [Monsanto Canada Inc. v. Schmeiser, 2004 SCC 34,  1 S.C.R. 902]
Transgenic organisms are living things with genetic information that has been added from another species. A Canadian company has created transgenic salmon that grow to full size at twice the rate of a normal fish. (Read how here.) The laws and regulations around it are a bit murky. As it gets closer to the grocery store shelf it can give us a better idea how transgenic organisms fit under our current laws (and any new ones).
While we wait… did you know that transgenic fish have been available for purchase in Canada already? Not in our grocery stores, but in our pet stores.
GloFish™ were briefly available in Canadian pet stores until Environment Canada found out about them. (Read more at: “CBC – Marketplace: Growing Nemo”.) The fish are obviously a bit different from the Salmon because they are not meant to be eaten. They made it into the Canadian marketplace before getting government approval and have since been banned from being imported. GloFish™ are a genetically modified aquarium staple, the zebra danio, that has been genetically altered to glow. The glowing effect has been added by introducing a gene from sea coral. The example illustrates the challenges faced by our government and regulatory agencies as innovation outpaces our laws and ability to enforce them.
As science continues to advance and push legal and ethical boundaries expect to see many of these issues brought to court.