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On 12-13 November 2006 I spoke in NYC at Cardozo Law School's conference on "Patenting People." This extremely interesting and relevant event brought together scientists, doctors, ethicists, lawyers, policymakers, religious leaders and other experts to talk about the implications of, well, patenting people. I spoke about "Canada's Distinction Without a Difference" when it comes to patenting higher life forms.
In the Harvard College case, a majority of the Supreme Court ruled that higher life forms are not patentable inventions in Canada. Four dissenting would have drawn the line not between higher and lower life forms, but between humans and non-humans. Just two years later, in the Schmeiser case, a 5-4 majority of the Supreme Court split the other way, holding that although plants (i.e. higher life forms) aren't patentable, their genes and cells are. Moreover, the Court ruled, patents on plant parts protect the whole organism.
The ostensibly conflicting outcomes are attributable to a change in the composition of the Court. Since Schmeiser, there have been further changes. In fact, since Harvard College, six of nine judges have turned over. My presentation suggested that all this flip-flopping contributes to law's indeterminacy, plays into the argument that law is really just politics in disguise, and ultimately undermines law's normative force and ability to provide moral guidance on this controversial topic.
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