There are many difficult questions surrounding the genetic manipulation of animals but the patent system is not the forum in which these are best addressed. There is nothing 'immoral' as such in owning animals, and a patent is essentially a form of temporary ownership.
All forms of conventional animal husbandry involve the commercial exploitation of animals and may or may not cause suffering to them. Whether or not an animal suffers in either a farmyard or a laboratory has nothing to do with the existence of a patent.
Dr Wilkie's article also gives the misleading impression that because a patent has been granted on the Harvard 'Oncomouse', Harvard has an automatic right to exploit its invention. However, a patent is a negative right that allows a patentee to prevent others using the invention. Patentees have no automatic right to use their invention. For this reason, it is perfectly legitimate for the EPO to take a narrow technical view of an invention. It is the essence of the system that a patent is granted on the basis of the technical merits of an invention.
The EPO is not, and should not be, qualified to decide whether or not a genetically engineered animal will experience undue suffering any more than it should be required to certify that novel anti- lock brakes would be safe when fitted to a car.
If more controls are needed to curtail the ownership of animals or to protect them, there are clearly more appropriate ways of doing so than by the use of the patent systems, since such controls should apply equally to all animals. To exercise Article 53a against patents concerning genetically engineered animals would be a very arbitrary and perverse way to seek to control genetic engineering itself.
The writer is a European patent attorney.Reuse content