Canada In Canada, the
Supreme Court in 2002 rejected the patent in
Harvard College v. Canada (Commissioner of Patents), overturning a
Federal Court of Appeal verdict which ruled in favor of the patent. However, on 7 October 2003, Canadian patent 1,341,442 was granted to Harvard College. The patent was amended to omit the "composition of matter" claims on the transgenic mice. The Supreme Court had rejected the entire patent application on the basis of these claims, but Canadian patent law allowed the amended claims to grant under rules that predated the
General Agreement on Tariffs and Trade, and the patent was valid until 2020.
Europe (through the EPO) European patent application 85304490.7 was filed in June 1985 by "The President and Fellows of
Harvard College". It was initially refused in 1989 by an Examining Division of the
European Patent Office (EPO) among other things on the grounds that the
European Patent Convention (EPC) excludes patentability of
animals per se. The decision was
appealed and the
Board of Appeal held that
animal varieties were excluded of patentability by the EPC (and especially its ), while
animals (as such) were not excluded from patentability. The Examining Division then granted the patent in 1992 (its publication number is ). The European patent was then
opposed by several third parties, more precisely by 17 opponents, notably on the grounds laid out in , according to which "inventions, the publication or exploitation of which would be contrary to "
ordre public" or
morality are excluded from
patentability. After oral proceedings took place in November 2001, the patent was maintained in amended form. This decision was then appealed and the appeal decision was taken on July 6, 2004. The case was eventually remitted to the first instance, i.e. the Opposition Division, with the order to maintain the patent on a newly amended form. However, revocation of the patent was eventually published on August 16, 2006, more than 20 years after the filing date (the normal term of a European patent under ), for failure to pay the fees and to file the translations of the amended claims under .
United States In 1988, the
United States Patent and Trademark Office (USPTO) granted (filed Jun 22, 1984, issued Apr 12, 1988, expired April 12, 2005) to Harvard College
claiming "a transgenic non-human mammal whose germ cells and somatic cells contain a recombinant activated oncogene sequence introduced into said mammal..." The claim explicitly excluded humans, apparently reflecting moral and legal concerns about patents on human beings, and about modification of the
human genome. Remarkably, there were no US courts called to decide on the validity of this patent. Two separate patents were issued to Harvard College covering methods for providing a cell culture from a transgenic non-human animal (; filed Mar 22, 1988, issued Feb 11, 1992, expired Feb 11, 2009) and testing methods using transgenic mice expressing an oncogene (; filed Sep 19, 1991, issued Jul 20, 1999, expires July 20, 2016). Both these patents were found to expire in 2005 by the USPTO due to a terminal disclaimer. Dupont is currently bringing suit in the Eastern District of Virginia. == See also ==