Research On Genetically Modified Animal's Patentability From "Harvard OncoMouse"

Biotechnology is the miracle of today's world, while it also initiates the fear of distortion to nature. Since the gene recombination technology came out in 70s of last century, Biotechnology develops quickly, By the application of gene recombination technology, genes of different species are recombined, even genes of heterodoxies can be implanted into animals'body and new genetically modified animals are created. The Harvard OncoMouse discussed in this paper is made in this way: implanting the oncogene into mouse's oosperm with microinjection, after it's up growth, Harvard OncoMouse is highly sensible to carcinogen of surroundings and easy to get cancer for the expression of implanting oncogene in its body. Therefore, Harvard OncoMouse can be used as animal models of curing mast carcinoma. To promote the development of the industry and technology, patent systems have rendered relevant protection. However, inventions of Biotechnology are always concerning"living bodies", based on the dignity of life, the grants of patent are easy to initiate disputes and moral doubts. Harvard OncoMouse is a typical case. Therefore, taking the first grant of patent to genetically modified animal, Harvard OncoMouse as example, discussing weather genetically modified animals have the patentability is the core of the paper.Even though Harvard OncoMouse was awarded patent in U.S. successfully, while in the course of application in EU and Canada, controversies of patent qualification of Harvard OncoMouse arise, such as:"what is the patent object of genetically modified animals?";"whether Harvard OncoMouse belong to animals?";"whether the invention of genetically modified animals run counter to public order and moral?"and so on. Based on the above mentioned controversies, centering in the Europe and USA's patent system, the paper discusses whether genetically modified animals belong to the scope of"objects of no patent"in patent law, whether genetically modified animals match the novelty, the creativity and practicability of patent application. The paper also discusses what the object of applicable patent is; what is the protection scope of patent law and China's countermeasures.This paper includes five parts. The first part introduces the course of Harvard OncoMouse's application in USA, EU and Canada, and all kinds of controversies triggered in the courses.The second part introduces the related background of patentability controversies of genetically modified animals, includes the basic principle and broad prospect of the technology of genetically modified animals, and main developing courses of biotechnology in USA and EU.The third part, based on the definition of"invention"in U.S. Patent Law, discusses weather the genetically modified animals can be the objects of patentability, and the protection scope of genetically modified animals'patent right.The fourth part analyses the novelty, the creativity and practicability of genetically modified animals.The fifth part, through comparing the differences of management pattern of the biotechnology patent in USA and EU, and different influences to economic benefit and technological innovation of biotechnology industry under different management pattern, the paper puts forward that China should open the gate of patent protection of genetically modified animals invention, and discusses how to deal with all kinds of possible impacts after China open the gate of patent protection of genetically modified animals invention.