canada

By: Andrew Glenny

Medical professionals are occasionally confronted with barriers to ideal treatment for patients caused by patents.  These cases are usually caused by inability to use certain prescriptions or methods due to a patent that claims them.  This problem is usually alleviated with the licensing of that product to be distributed in hospitals.  One problem is that gene patents are not licensed so research and other medical research needs to be sent to the company with the patent to be worked on.  This can cause great delays for people with serious medical issues.

In some cases people have had to ship their samples from Canada all the way to the United States to have research and work done.  This process is very expensive and slow, which greatly inconveniences those affected.

The Supreme Court of the United States ruled in June of 2013 that patents on naturally occurring genetic material are not valid.  The Court has consistently found that the discovery of things found naturally occurring in nature is not patentable subject matter.  This does not prevent companies in the United States from securing patents in other countries that do identify DNA as patentable subject matter.

Patents on naturally occurring genetic material have been widely unpopular throughout the world.  The European Union has found that genetic material can be patented so long as it has been created by a technical process or isolated from the human body.  This leaves the ability to patent genetic material open.  The Federal Court of Australia has ruled that naturally occurring genetic material is entirely patentable.

Japan has found genetic material patentable with two important conditions, the subject matter of the patent must have potential to be used commercially and it the subject matter cannot be a medical activity.  This ensures that the public is not put through an undue burden when they need medical help.

It has long been held that discovery of a naturally occurring property of nature is not patentable subject matter.  That principle is based on the idea that in order to deserve a patent the applicant must have invented something, not simply find it.  That is one of the biggest reasons why many countries are so apprehensive about allowing patents on genetic material.  To get around that many countries have created clauses allowing patents on genetic material as long as it was made, not discovered.

The other primary concern is that allowing patents on human genetics or genetics in general, treats life as a commodity.  This is more of an ethical question than a legal one but analogies can be drawn to slavery.  Since patent law is strict liability, the mere existence of a patented creation without approval of a patent holder is a violation of the patent.

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