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Patent Pending Patent Pending A discussion guide on Biotechnology and The Oncomouse. To order free copies of this Phone: 416-972-9494 booklet for your discussion Fax: 416-927-0405 group Contact email [email protected] The Canadian A PDF copy of the booklet Council of Churches, can be downloaded from 159 Roxborough Drive, the Canadian Council of Toronto, ON, Churches' website at M4W 1X7, Canada www.ccc-cce.ca. “The Canadian Council of Churches is a community of churches which confess the Lord Jesus Christ as God and Saviour according to the Scriptures and therefore seek to fulfil together their common calling to the glory of one God, Father, Son and Holy Spirit, and also other churches which affirm the same faith but which do not make doctrinal confes- sions” (Canadian Council of Churches, Constitution). Founded in 1944, it now includes 18 member churches and one associate member. TABLE OF CONTENTS The Mouse That Made the Lawyers Roar .................................... Anne Mitchell and Janet Somerville The Oncomouse: A Test Case in Accountability?........................................................... Stephen Allen Science and Religion 101 ..................................................................................................... Paul Fayter Thinking About Bioethics: A Way Forward .............................................................Richard Crossman CreationTM? Life and the Limits of Ownership ....................................................... Eric B. Beresford To Oncomouse: In Appreciation .................................................................................... Ihor G. Kutash Canadian Council of Churches Why this booklet? On December 5, 2002, the Supreme Court of Canada published its decision that a genetically modified mouse, developed in the early 1980s by two scientists at Harvard University, is not an invention within the meaning of Canada’s Patent Act. The split ruling (five in the majority, four dissenting) supported Canada’s Commissioner of Patents when he ruled in August 1995 that Harvard University could not obtain a patent in Canada on this famous rodent, now known interna- tionally as “the oncomouse” because of its use in cancer research. The ruling also ended a long round of appeals in Canada’s lower courts. Interested parties on both sides of this particular biopatenting question are urging that Canada’s Parliament move soon to develop laws that will take account of the vast work now being done in biotechnology. The new legal framework should directly face the question of whether animals and other living beings should, or should not, be patentable. Canada’s churches–at least that majority of churches represented in the Canadian Council of Churches and/or the Evangelical Fellowship of Canada–consider that the biopatenting issue is a significant one for humanity’s understanding of itself and of its call to live respectfully with other living beings, which we believe are also creatures of God. Seeking the Creator’s wisdom on our relationship with other forms of life is crucial now, when new ideas and powerful new techniques are having such an impact on humanity’s self-understanding and on the scope of human action. That’s why the Council of Churches and the Evangelical Fellow- ship together sought intervener status in the Supreme Court’s “oncomouse” case, as did nine other non-governmental organizations. And that’s why this modest booklet has been published. It is intended as a discussion-starter for people in church networks who want to consider these questions, which, presumably, will soon be before the Parliament of Canada. The booklet consists of six short essays commissioned by members of the Bio- technology Reference Group of the Canadian Council of Churches. Each essay is followed by references to a few relevant biblical texts for discussion, plus two or three questions to help discussion get started. The same texts–longer versions, in some cases, including footnotes and bibliographical references–can be found on the web site of the Canadian Council of Churches (www.ccc-cce.ca). Biopatenting is only one strand in the huge tissue of new questions raised for faith communities by contemporary biotechnology. But it’s a good place to start. The members of the committee charged with preparing this little booklet hope its reflections will be useful as a starting-point for conversations among Christians. We wish you God’s peace as you help each other consider aspects of a very big question: who, if anyone, “owns” life? Mary Marrocco, Ph.D., Associate Secretary (Faith and Witness), Canadian Council of Churches for the Biotechnology Reference Group Rev. Dr. Richard Crossman, Principal-Dean, Waterloo Lutheran Seminary Janet Somerville, former General Secretary of the Canadian Council of Churches 1 LIFE: PATENT PENDING The Mouse That Made We haven’t checked all the cancer researchers, and they all the Lawyers Roar records, but it seems safe to have budgets. Thus, Harvard’s Anne Mitchell and assert that May 2002 was the Oncomouse is interesting not Janet Somerville first time in human history that only scientifically, but also a national high court–the commercially. It’s a hot prop- Supreme Court of Canada, no erty. less–met to determine the legal A property? How much of it is fate of a mouse. a “property”, and in what The rodent that came under the sense? Can a living, breathing, microscope of nine learned reproducing mouse be patented Justices was not, of course, just in the Canadian legal environ- any mouse. It was Harvard’s ment by a corporation of Oncomouse. The little creature humans? That was the question emerged, not only from thou- that confronted the Justices of sands of years of ordinary the Supreme Court of Canada genetic history, but also from on May 20, 2002. the research labs of Harvard On the mouse’s way to the University, where it was con- Supreme Court, lower courts ceived–and was significantly were in agreement that Harvard changed. Scientists there had University could, under Cana- transgenically engineered a dian law, patent the method the mouse embryo to incorporate scientists used for getting the an “oncogene” into its genetic oncogene into the mouse. They make-up, in such a way that the further agreed that Harvard altered gene sequence would be could patent the novel gene inheritable. sequence–the tiny For anyone who portion of the works hands-on as a “A complex life mouse’s genetic laboratory scientist inheritance that had looking for new form does not been deliberately insights into cancer, fit within the changed. Those two the degree of predict- current novelties could be ability that results parameters of considered “inven- from this inheritable tions” within the oncogene makes the the Patent Act meaning of the Oncomouse a sort of without Patent Act. thoroughbred in the stretching the But the mouse itself, stables of laboratory and its living off- mice. Generation meaning of the spring–the whole after generation, the words to their new “species”, if we offspring of this breaking point.” want to call it such– mouse will be prone can it be patented? to develop cancer in a At what point does it fairly predictable make sense for us to treat a way, making the work of cancer living animal as a manufactured research that much easier. item that can properly be There are in this world many 2 Canadian Council of Churches claimed as yet another deliberate human invention? that patenting a living animal is a rather arrogant What about all those millennia of development that step to take, given that humans don’t own Crea- brought the mouse to its present-day complexity tion? Shouldn’t there be a broader public conver- without any human intervention? Is that complex sation about the patenting of higher life forms, and earthly history now to be treated as one of the shouldn’t the churches be in on that conversation? intellectual properties of Harvard and its multina- The Friends’ challenge was heeded. After some tional partner DuPont? very lively conversations, Rev. David When asked in 1995 if the modified Pfrimmer, then the chair of the mouse could be patented, the Cana- If nature is God’s Commission on Justice and Peace of dian Commissioner of Patents had good creation, what the Canadian Council of Churches, answered no: this living creature is wrote to the Prime Minister calling not an “invention” within the mean- in nature do we for an appeal of the Federal Court’s ing of the Canada Patents Act. When humans have the decision, citing the need for broad Harvard appealed that decision to the right to “own”? public reflection before a final deci- trial division of the Federal Court, sion on such a significant precedent. Judge Nadon upheld the Commis- On October 2, 2000, the Government sioner of Patents, and wrote, On even of Canada filed an application to appeal the the broadest interpretation I cannot find that a “Oncomouse” decision to the Supreme Court of mouse is “raw material” which was given new Canada. Shortly afterwards, the Canadian Council qualities from the inventor. Certainly the presence of Churches, in partnership with the Evangelical of the myc gene is new, but the mouse is not new, Fellowship of Canada, requested and obtained nor is it “raw material” in the ordinary sense of intervener status in the case. that phrase...A complex life form does not fit within the current parameters of the Patent Act without The lawyer who was invited to put some of the stretching the meaning of the words to their break- concerns of the churches into legal language was ing point, which I am not prepared to do. Harvard William J. Sammon of Barnes, Sammon, Ottawa. appealed Judge Nadon’s decision. And in August Mr. Sammon’s brief pointed out that when the 2000, the Federal Court of Appeal, in a split 2-1 Canada Patent Act was passed in 1869, the framers decision, allowed Harvard a patent on the mouse of the legislation never dreamed that the Act would itself.
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