An Emerging Intellectual Property Paradigm

An Emerging Intellectual Property Paradigm

Perspectives from Canada

Queen Mary Studies in Intellectual Property series

Edited by Ysolde Gendreau

This book brings together contributions from reputed experts on Canadian intellectual property law which highlight its special features. Situated at the crossroads between legal traditions in Europe and the United States, Canada’s intellectual property laws blend various elements from these regions and can offer innovative approaches. The chapters focus primarily on patents, trademarks, and copyrights, covering both historical and contemporary developments. They are designed to bring perspective and reflection upon what has become in recent years a very rich intellectual property environment.

Chapter 4: From Pasteur to Monsanto: Approaches to Patenting Life in Canada

Mark Perry

Subjects: law - academic, intellectual property law


Mark Perry1 BACKGROUND Few would dispute that one of the main rationales of all patent regimes is to encourage the development of new ‘inventions’, to promote innovation by direct reward (the grant of the monopoly from the state), and to ensure the dissemination of information required to stimulate further invention.2 It is usually stated from the utilitarian perspective by the courts:3 There is no doubt that two of the central objects of the Patent Act are ‘to advance research and development and to encourage broader economic activity’. It is notable that the Canadian courts are recently giving recognition to the wider theoretical basis for the state granting Intellectual Property rights to inventors, authors, and traders, in particular the sense that there are balancing ‘user rights’ for the consumers and the users of the material protected by intellectual property rights.4 In the realm of biotechnology, however, there have been some problems in the application of these tenets, whether the new or the old. The objective of promoting innovation has been met with the denial of 1 Many thanks to Stephanie Sutherland (Law Class of 2008) and Jennifer Hoffman (Law Class of 2009) for their diligent assistance, and to the Law Foundation for their support. However, all errors and omissions are my own. 2 Graeme W. Austin, ‘Copyright’s Modest Ontology – Theory and Pragmatism in Eldred v. Ashcroft’ (2003) 16:2 Canadian Journal of Law and Jurisprudence 163. 3 Free World Trust v. Électro Santé Inc., [2000] 2 S.C.R. 1024, 2000 SCC...

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