| Publisher | Canadian Biotechnology Advisory Committee (CBAC) | ||
|---|---|---|---|
| Format | PDF, requires Acrobat Rdr 5 | Date added | 15 Feb 2001 |
| Topics | Biology, Biomedical, Genetic Engineering | ||
| Downloads | 66 | ||
Modern genetic research has given rise to serious concerns about personal privacy and the possibility of discrimination based on genetic heritage. The right to privacy and to protection from discrimination is recognized both in Canadian and international law. Possible implications for the patent system need to be further investigated.
The U.S. Patent and Trade Office has taken the position that patenting of human beings is contrary to the Constitution which prohibits slavery. A patent holder does not own the invention, but it must be determined whether the property interests of a patent holder might entail sufficient control that the patent offends the prohibition on slavery or broader rights to liberty and security of the person. In the Canadian context we must consider whether patent rights might in some cases offend the Charter's guarantees of liberty, security of the person and equality. This must be undertaken with reference to the rights that the patent holder would have, i.e. exclusive rights to make, use or sell the invention. Some have suggested that excluding others from using or making the invention could interfere with individual autonomy (e.g. a individual's right to reproduce).
Further questions arise as to the scope of any constitutional prohibition on patenting humans. First, what patents on human materials, as opposed to humans per se might give rise to potential of infringements? Second, assuming that there are some constitutional barriers to patenting human beings, how would we define human beings as the subjects of this protection? This question arises with respect to human embryos and transgenic animals, hybrids and chimaeras which are part human. Resolution of the issues raised in this paper is important for government, individuals, industry, investors and researchers. Various options have been suggested to modify or supplement the
patent regime. A rigourous analysis of human rights issues can help take the debate toward a more compreh
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