Canada should allow patents on higher life forms —other than humans — and amend its Patent Act to allow for research and experimental use of patented processes and products. These recommendations were among 13 included in the final report of the Canadian Biotechnology Advisory Committee, which was released June 7 prior to the opening of the Bio2002 conference in Toronto.

CBAC reports to the Biotechnology Ministerial Coordinating Committee, comprised of six federal departments and its recommendations have no power to alter legislation. But the report will likely be given serious consideration at the political level as adoptions of its recommendations would bring Canada in line with the majority of industrialized nations.

The patenting of higher life forms comprises one of the report’s four main topic areas and commands five recommendations, four of which are to be considered as a package. The recommendation to amend the Patent Act to prohibit the patenting of human bodies at any stage of development stands alone.

But the recommendation to allow the patenting of plants, seeds and non-human animals comes with three provisos:

1. Farmers should be permitted to save and sow seeds from patented plants and breed patented animals, subject to certain restrictions;
2. individuals should be protected from the “adventitious spreading of patented seed or patented genetic material or insemination of an animal by a patented animal”;
3. Research and experimental use of a patented process or product should not be considered a patent infringement if it is conducted privately and for non-commercial use, or used to study a patented invention “to investigate its properties, improve upon it, or create a new product or process”.

“The current situation in Canada ... means that a number of concerns about innovation and investment and about the effects and implications of biotechnology are not being addressed,” states the report.

The report acknowledges that there are persuasive arguments both in favour and against the patenting of non-human higher life forms, and notes that this recommendation was the only one that did not receive the Committee’s unanimous consent. Anne Mitchell, executive director of the Canadian Institute of Environmental Law & Policy, dissented and argued that if the law is changed, it should only be after a full public debate in Parliament.

The report also contains detailed sections on other issues related to biotechnology and intellectual property, ways to improve the administration of the patent system, and social and ethical concerns raised by biotechnology.

CBAC issued the current report after releasing an interim version and circulating it for comments. The number of recommendations was reduced from 16 to 13. A copy of the report can be obtained at www.cbac-cccb.ca.

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