Case introduction
Harvard mouse, also known as tumor mouse, is a kind of mouse cultivated by two scientists of Harvard University through transgenic technology in 1980s. Because mice are easy to cause cancer, they have great scientific and medical research value. European Union countries and the United States have successively approved the granting of the patent right of "Harvard Rat".
In 1993, the Canadian Intellectual Property Office ruled that "Harvard mouse" cannot be patented as a mouse, but Harvard University can obtain patents on oncogenes and related experiments. This ruling aroused the dissatisfaction of Harvard University. However, both the Canadian Patent Appeals Board and the federal court supported the decision of the Canadian Patent Office. By August, 2000, the Canadian Federal Court of Appeal ruled that "Harvard Rat" could obtain the patent right by a vote of 2 1. However, the decision of the Federal Court of Appeal was unconvincing, and the lawsuit about "Harvard Rat" went all the way to the Supreme Court of Canada. From June, 5438 to February, 5, 2002, whether Harvard rat can get a patent was finally decided by the Supreme Court of Canada. The judgment holds that the concepts such as process, machine and composition used in the patent law cannot cover higher organisms themselves. Canada is the only western country that has not granted a patent to Harvard mice.
The "Harvard Rat" patent case has different meanings for different groups.
For the Canadian patent community, this case represents whether higher life forms are "inventions". The Canadian Patent Appeal Board said that "higher life forms" were not inventions and could not be patented, but the Canadian Federal Court of Appeal held that "Harvard mouse" met the definition of invention in the patent law. Canada has previously granted patents for micro-life, but never for advanced life forms. At present, the Canadian Intellectual Property Office has more than 500 patent applications for genetically modified animals and plants, and the decision of "Harvard Mouse" will have a great impact on it.
For Harvard University, patents mean wealth. At present, laboratories all over the world need 25 million mice to carry out experiments every year, and the "Harvard mouse" which is very suitable for cancer research naturally has unlimited funds.
For the Canadian scientific community, patents mean research funding. If the patent is not approved, it will definitely reduce the interest of some enterprises in research funding, especially in the case that the United States and Europe have already approved this patent, and Canada's rejection of this patent means the loss of research funding.
Religious circles are worried that granting patents to Harvard mice will cause ethical confusion. A lawyer of the Canadian Church Union said that just knowing how to arrange one's own genes claims that one owns this creature, and human beings have no moral rights.
Environmental protection circles are worried that transgenic technology will bring disaster to nature. They are worried that some genetically modified animals and plants will change the balance of species after being integrated into natural animals and plants, and even more worried that the destruction of a species balance will bring the same domino effect, thus changing the whole nature.
question
Can Harvard rats get a patent in China? Why? To annotate ...
Animal and plant varieties can be divided into natural growth and artificial cultivation. Animals and plants growing in nature are not the products of human wisdom, and the focus of patent law is to encourage innovation, so new varieties of animals and plants cannot apply for patents. Although the artificially cultivated new varieties of animals and plants are the products of human intellectual labor, it takes a long time to cultivate any new varieties of animals and plants, and it will be remarkable, stable and consistent after several generations of screening. Therefore, China's patent law has not granted patent rights to new varieties of animals and plants for the time being. 1on March 20th, 997, the State Council issued "China people"
* * * Regulations on the Protection of New Plant Varieties in People's Republic of China (PRC), in which Article 1 clearly stipulates: "Protecting the right of new plant varieties, encouraging the cultivation and utilization of new plant varieties, and promoting the development of agriculture and forestry" is the purpose of this Ordinance. After the promulgation of these regulations, new plant varieties can be protected in China according to these regulations. However, as far as new animal varieties are concerned, the current laws and regulations in China have not given the inventors of new animal varieties a patent right. On the contrary, Article 25 of China's Patent Law stipulates that no patent right shall be granted to new animal varieties.
The right claimed by the right holder of "Harvard Rat" is a typical patent right of new animal species. According to the provisions of China's patent law, the patent law does not protect new animal varieties for the time being. Therefore, "Harvard Rat" cannot be granted a patent right in China at this stage. According to the provisions of Article 25 of China's Patent Law, China's Patent Law will not grant the patent right to new varieties of animals and plants for the time being, but the production method of new varieties of animals can be granted the patent right in accordance with the provisions of the Patent Law.