ABSTRACT
The patenting of life raises a variety of important issues that challenge our normative understanding of intellectual property rights and draw attention to the need for institutional reform within domestic and international law. Extending patent protection to genetic information surrenders control to property holders, primarily large corporations, over access and use of this information, and restricts individual liberty rights. It jeopardizes the future direction of genomics research and application. The individual and opportunity costs will continue to rise as we transition out of the knowledge economy to the bio-economy. Biopatenting is not only contestable by traditional doctrines in domestic patent law but also under numerous international human rights instruments that reect the special and jurisdictionally sovereign character of, and in some instances our communal claims to, life and its genetic building blocks. These issues have become arguably more signicant in Canada given our Supreme Court’s determination that non-human higher life are not patentable. Yet, any life containing a patented subcomponent, such as a gene, or a vector would be an infringing use of the underlying patented invention. The Canadian government, though familiar with patent controversy at the intersection of health policy and human rights, has responded to this tension in other jurisdictions, but has not failed to critically examine how patent law may be impacting health policies, including predictive genetic testing, at home. As a result, Canada is often hailed as a global leader in taking the initiative to amend patent law to supply essential medicines to foreign (DC and LDCs) governments with little or no manufacturing capacity, but lacks similar initiative to address the persuasively more inclusive HR issues arising from biopatenting. The health rights and interests of our own citizens must be as important as those of our human family internationally, which Canadian law now laudably serves to protect.1 Whether Canada or any nation decides
1 See ‘Government of Canada Reinstates Legislative Proposals to Enable Export of Low-Cost Pharmaceutical Products to Least Developed and Developing Countries’,
a public participatory process with an engaged representative government. Strident efforts are needed to resolve the legal quagmire of biopatenting given how fundamental this issue is to the cultural, ethical and social fabric of our society. Continued failure to undertake a political process of review has led to an incremental development of patent law by judicial at that lacks a broader social context and a coherent foundation in national IPRs policy. It has resulted in the progressive emasculation of the state by its agents. Domestic patent protections unnecessarily exceed what is prescribed under TRIPS and limit the scope for optimal cross-policy coordination, further compromising the realization of HR by forfeiting important policy space preserved in TRIPS.
