Since s. 2 of the Patent Act defines an “invention” as “any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter,” it’s clear that there are limitations on what can be patented. These limitations were noted by the court in Harvard College v. Canada where it was held that the definition of “invention” in the Patent Act demonstrates Parliament’s intention to include certain subject matter as patentable and exclude other subject matter as being outside the confines of the statute. Since one of the earliest dogmas of patent law was premised on the fact that “anything under the sun made by man” is patentable, one can assume that genes, proteins, and living matter that exist naturally within living organisms would not be patentable subject matter. Clearly, the U.S. and now Australia do not agree.

In the U.S. case, Merck & Co., Inc., v. Olin Mathieson Chemical Corporation, the court held that DNA and protein sequences were deemed patentable so long as they are isolated and purified. After considerable public outcry and political pressure, it was not surprising that the U.S. Patent Office released the “Utility Examination Guidelines” which made patenting DNA and protein sequences more difficult. The Guidelines stipulated that a DNA or protein sequence patent would only be awarded if the function of the sequence was known. The U.S. Myriad case is the landmark decision in this area. The court held that isolated genes are patentable subject matter because DNA isolated from the body is “markedly different” from the DNA that exists naturally in chromosomes. It seems that Australian courts are following a similar pattern of reasoning since they feel that isolated genes are patentable because they are “not naturally occurring DNA or RNA as they exist within the cells of the human body.”

An argument can be made that Canada is headed down the U.S. and Australian path of gene patenting. The court denied a patent on the Oncomouse in Harvard College v. Canada; however, in Monsanto Canada Inc. v. Schmeiser, the court held that a patent covering the commercial rights to genetically-modified cells in canola plants extended rights to the patent holder over the entire plant. The holdings in Harvard College v. Canada and Monsanto v. Schmeiser are clearly contradictory, but this just may reflect how Canada is adopting the trend seen in other jurisdictions.

These cases bring to the forefront the unresolved social, biological, political, ethical and economic issues surrounding this area of patent law. The courts are likely influenced by various non-legal factors such as the economy, investments, and international competitiveness. As a result, these non-legal factors have taken priority over established legal doctrines. It’s definitely clear that the commercialization of genomic research will continue to grow. Allowing research and patenting to progress uninhibited might be the right choice for some; however, this approach may permit too much naturally occurring material to become the property of a few large companies. I’m not sure if limiting scientific research to only a select few will contribute to or stifle innovation. Likely the latter, but only time will tell.

I agree, the exceptions to the anti-circumvention provisions in the DMCA are not infallible, and are rather vulnerable to criticism, as you’ve demonstrated. However, I believe it’s necessary to acknowledge that although not flawless, the exemptions you’ve mentioned, in addition to several others, permit activities that would be otherwise infringing under several other copyright regimes, including Canada. For instance, in the DMCA, the circumvention of a TPM is allowed in order to make use of short portions of a motion picture for the purpose of criticism or comment in: (i) noncommercial videos; (ii) documentary films; (iii) nonfiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty and students, and kindergarten through twelfth grade educators. Conversely, under the Copyright Modernization Act (CMA), narrow exceptions have been carved out that don’t remotely resemble this exemption in the DMCA. Instead, the CMA authorizes the circumvention of TPMs for purposes relating to national security and law enforcement, the interoperability of computer programs, encryption research, and making content perceptible to persons with perceptual disabilities, amongst a few other exceptions. The anti-circumvention provisions in the CMA ostensibly extend beyond copyrights own safety valves, such as fair dealing and other exceptions and limitations contained in the legislation. It is evident that both regimes aren’t perfect and could benefit from amendments.

On a statutory level, we can shorten the term of software patents to reduce the power of patent trolls, who were found to begin asserting their patent rights late in the term. The problem with trolls and the technology industry is evident (lawsuits filed by patent trolls have almost doubled (from 22% to 40%) in the past five years and are particularly harmful to start-ups), so much so that US congress has introduced a bill that will force trolls to pay for litigation costs in cases where the court finds that they had no reasonable likelihood of succeeding.

Another possible solution is to introduce an independent innovation defence, which is discussed beautifully by Samson Vermont and later by Lemley. This proposition has also been suggested by EFF (along with a number of other valid ideas).

Finally, we can instruct courts to tailor patent law to suit the needs of various types of businesses. If parliament continues to be deadlocked on the issue, this may be the most viable path to take – at least while we’re waiting.

While I am self-confessed iDrone, I will admit that a big part of me was cheering for RIM and the Z10. I have always loved that RIM was a Canadian company and had taken the world by storm. That being said, I still mocked my Crackberry toting friends and never considered owning one myself.

With the release of the new Z10 my perspective has changed slightly such that if my iPhone4S were to tank (god forbid! touch wood) I would test out the Z10 and the iPhone5 together. In my case, my loathing of Samsung devices will only work for RIM as I wouldn’t consider a Galaxy. Likely, I would still go with the iPhone because I like the Apple interphase and am an Apple automaton, but a little part of me would cringe as I realized I was putting another nail in RIM’s coffin.

The patriotic part of me hopes Blackberry and RIM are able to pull it together to scrape enough market share in the big bad Apple and Samsung world. Whether that is likely remains to be seen. I will say this though, Good Luck RIM! Go Canada!

The Federal Court’s comments in the BMG case on downloading echoed an earlier Copyright Board decision that downloading onto an audio recording medium is legal, regardless of the source of the music and regardless of whether a levy has been sought on the medium. This point was later confirmed by the Federal Court of Appeal when it rejected a levy on iPod type devices or the memory permanently embedded therein.

CRIA (which now calls itself Music Canada) has always had to live with the inconvenient truth and consequence that the private copying levy scheme in Canada legalizes downloading of music, as least insofar as it is done onto an “audio recording medium” – which surely includes both internal and external hard drives of personal computers. Don’t take my word for this. Read the Copyright Board decision here at pages 19-21

http://www.cb-cda.gc.ca/decisions/2003/20031212-c-b.pdf

And subsequent FCA decisions.

In any event, the appeal ruling in the BMG case simply said the findings on infringement in the decision below were “premature” and not based upon sufficient evidence but stopped far short of saying that they were wrong.

Anyone wishing to read a balanced analysis of the FCA decision by myself who acted on the winning side and Peter Ruby and Richard Naiberg who acted for the music industry on the other side on this case can find it here:

http://www.macerajarzyna.com/pages/publications/BMG%20Case%20-%20E-Commerce.pdf

The fact is that the appeal of the “infamous verdict” was dismissed. For whatever reason, BMG was unable or unwilling to come back with the evidence required by the FCA to pursue the cases.

And by the way, Federal Court judges don’t render “verdicts” here in Canada. Terminology matters.

As does accuracy.

Regards,
Howard Knopf