About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

39 Can. Bus. L.J. 238 (2003)
The Harvard Mouse Case: A Comment from the Viewpoint of Japanese Law

handle is hein.journals/canadbus39 and id is 258 raw text is: THE HARVARD MOUSE CASE: A COMMENT FROM THE VIEWPOINT OF JAPANESE LAW Shimanami, Ryo* Together with Canada, Japan is signatory to several international treaties on patent law, such as the Paris Convention for the Protec- tion of Industrial Property,' and the Convention on Trade-Related Aspects of Intellectual Property Rights,2 which require minimum standards for patent protection of member countries. So the Japanese Patent Act3 has fundamentally the same structure as the Canadian one. The Japanese Patent Act has two important clauses related to the patentability of higher life forms (HLFs): one, as in its Canadian counterpart, is its definition of invention in s. 2(1), and the other is a public policy clause found in s. 32. The patentability of HLFs in Japan is, therefore, argued as a matter of interpretation and applica- tion of these two provisions: s. 2 An invention is a highly advanced creation of technical ideas utilizing a law of nature. s. 32 An invention which contravenes public order, morality, or public health is unpatentable.4 Concerning the definition of an invention, the term creation is at issue. It implies that an invention is not just a discovery of an already existing object but a kind of output of human creativity. So to be patentable, HLFS must also be a result of creative human activity such as hybridization or gene recombination. It is, therefore, * Associate Professor, Graduate School of Law, Kobe University, and former visiting scholar, Centre for Innovation, Law and Policy, University of Toronto, ryos@kobe- u.ac.jp. 1. <http://www.wipo.org/treaties/ip/paris/index.html>. 2. Annex IC of the Marrakesh Agreement Establishing the World Trade Organization, Trade-Related Aspects of Intellectual Property Rights <http:wto.org/English/docse/ lega_01 e.htm> (hereafter TRIPS). 3. Law No. 121 of April 13, 1959 as amended by law No. 220 of December 22, 1999. Its outline in English can be obtained at <http://wwwojpo.go.jp/shoukaie/patent.htm>. 4. It is clear that a process to make new HLFs is patentable also in Japan. On the other hand, a medical process is now practically unpatentable in Japan because it is thought that medical processes have no availability (utility) in industry. 238

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most