Upon discovery of the J. Craig Venter Institute\u2019s
\n(Institute) application for patent protection on a
\nsynthetic life form, called \u201cMycoplasma laboratorium\u201d,
\nthe ETC Group promptly announced its intention to
\nchallenge the patent and urged the relevant
\nauthorities to reject the application as contrary to
\npublic morality and safety.\u00a0 The ETC Group does not
\ncontend that the invention fails to meet the
\ndefinitions of novelty, non-obviousness and utility.
\nInstead, the primary objections are based on ethical,
\nsocial and environmental concerns, in addition to
\ncriticisms over the broad scope of the claims and the
\npotential restrictions on future innovations.\u00a0 This
\nuproar is a timely reminder that technological
\nadvancements are outpacing society\u2019s ability to fully
\nevaluate and debate the consequences of such
\ntechnology.\u00a0 Also, this latest controversy highlights
\nthe inadequacy of Canada\u2019s Patent Act to deal with
\nthese emerging and controversial technologies and the
\nneed for Parliament to revise the current system of
\ngranting patents. <\/p>\n
Dubbed \u201cSynthia\u201d by the ETC Group, the synthetic life
\nform is being trumpeted by the Institute as a solution
\nto problems like pollution, climate change and fossil
\nfuel dependency.\u00a0 Nonetheless, the dangers associated
\nwith the technology are equally compelling.\u00a0 For
\ninstance, it is conceivable that this knowledge might
\nbe used to create a self-replicating synthetic
\npathogen.\u00a0 Moreover, the ramifications of introducing
\na synthetic organism into nature have not been fully
\nexplored.\u00a0 While the concerns raised by the ETC Group
\nare undoubtedly valid, they should not obfuscate the
\npotential benefits of this technology, especially
\nsince there are inherent risks to any notable
\nscientific endeavor.\u00a0 Given these considerations, the
\nproper approach is to balance the full costs and
\nbenefits of any new technology and construct a
\nregulatory structure to manage the risks.<\/p>\n
This task is best achieved by acts of Parliament.\u00a0 In
\nHarvard College v. Canada (Commissioner of Patents),
\n2002 SCC 76, [2002] 4 S.C.R. 45, the majority
\ncorrectly pointed out that courts are ill-equipped to
\naddress the complex ethical and social issues
\nassociated with patenting higher life forms.\u00a0 This
\nargument is equally compelling with respect to
\nsynthetic life forms.\u00a0 Besides the scientific
\ncomplexity of the issue, there are various social
\nramifications that are best addressed by an elected
\nand publicly accountable institution.\u00a0 After all, the
\nmorality of society is more likely to be reflected in
\nthe decisions of an elected legislature than it is in
\nthe courts.\u00a0 Moreover, courts lack the broad
\nfact-finding capability of the legislature.\u00a0 The
\nnarrow mandate of the courts when adjudicating cases
\nprevents them from considering facts and evidence not
\nrelated to the case at hand.\u00a0 In contrast, Parliament
\nhas the unrestricted ability to solicit evidence and
\nengage in wide-ranging debates on the legal, moral,
\nsocial and environmental impact of a new technology.
\nMore importantly, given the controversial nature of
\ncreating artificial life, solutions developed by a
\ndemocratically elected legislature will engender more
\npublic acceptance than any judicial decisions.\u00a0<\/p>\n
Currently, the Patent Act does not give the
\nCommissioner of Patents discretion to deny a patent
\nbased on public morality and ethics once the statutory
\nrequirements are met.\u00a0 This is a sensible approach as
\nit prevents the Commissioner\u2019s subjective value
\njudgments from influencing patentability.\u00a0 However,
\nwhile this approach might be suitable for relatively
\nuncontroversial inventions, biotechnology and genetic
\nengineering advancements can have substantially more
\nprofound implications for society that justifies the
\nintroduction of additional considerations besides the
\nstrict technical ones contained in the Patent Act.\u00a0<\/p>\n
Instead of expanding the mandate of the Commissioner,
\nParliament can permanently create an administrative
\nbody or committee to scrutinize patent applications in
\nspecified controversial and risky technological areas.
\n\u00a0Before any patent is granted, the government
\ncommittee is convened to solicit public feedback and
\nevaluate the broader social implications as well as
\nscientific merits of the application.\u00a0 The members of
\nthe committee can consist of interested parties from
\nthe scientific community, special interests group and
\nthe legislature.\u00a0 The Commissioner of Patents will
\nthen issue patents based on the recommendations of
\nthis committee.\u00a0 This approach has the benefit of
\nretaining the current patent system for conventional
\napplications while being flexible enough to handle
\ncontroversial patent applications.\u00a0 Furthermore, the
\nopen and systematic process of evaluating
\ncontroversial patent applications can reduce personal
\nbias in assessing patentability and engender wider
\nacceptance of the results.\u00a0 Admittedly, the
\nrequirement that patents be granted only upon a
\ncomprehensive and open review can impede the pace of
\nprogress by delaying the economic exploitation of new
\ntechnologies and hence discourage innovation.
\nNonetheless, the ramifications of such technologies
\njustify this cautious approach and the benefit of such
\nan approach outweighs the cost.<\/p>\n","protected":false},"excerpt":{"rendered":"
Upon discovery of the J. Craig Venter Institute\u2019s (Institute) application for patent protection on a synthetic life form, called \u201cMycoplasma laboratorium\u201d, the ETC Group promptly announced its intention to challenge the patent and urged the relevant authorities to reject the application as contrary to public morality and safety.\u00a0 The ETC Group does not contend that […]<\/p>\n","protected":false},"author":2140,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","footnotes":""},"categories":[141,10],"tags":[214],"class_list":["post-85","post","type-post","status-publish","format-standard","hentry","category-patentability","category-patents","tag-kahfoo-koh"],"yoast_head":"\n