Harvard college's "oncomouse," which is a mouse that has been genetically engineered to make it more susceptible to cancer, and thus of more use in research, could be patented under Canadian patent law. The Patent Examiner refused to grant the patent, stating that higher life forms were not inventions under the applicable law because they were not compositions of matter. The majority opinion upheld the Patent Examiner's decision. Justice Binnie dissented to the majority's opinion. Justice Bastarache wrote the majority opinion.
The majority opinion, authored by Justice Bastarache represents the court's actual decision. Majority opinions represent the decision of the court. In some cases, there is no actual majority opinion because of partial dissents and concurrences, but that is not applicable in this case. The majority felt that Parliament did not intend for every conceivable subject matter to be patentable, and points to the fact that Parliament wrote an exhaustive definition limiting patentable subject matter. It focused on two phrases, "manufacture" and "composition of matter" to examine whether the genetic engineering of a mouse would fall under the rubric of the law and felt that neither animal nor plant life fell under those two broad categories. However, rather than focus on the patent law itself, the majority seems very concerned about the precedent that would be set if it allowed this patent. It provides that, "the potential for commodification of human life arises out of the fact that the granting of a patent is, in effect, a declaration that an invention based on living matter has the potential to be commercialized" (p.166).
In his dissent, Justice Binnie takes issue with the fact that majority injected personal moral issues into what he felt was a clear legal question. To Binnie, a mouse is clearly a composition of matter. Moreover, he points to the fact that patents had previously been issued on lower life forms, such as fungi, to indicate that life forms have been considered compositions of matter. He also disagrees with the majority that allowing the patent would create a slippery slope to the patenting of human genetic material, as he believes that the lines between rodents and humans are clearly drawn. He points out that the law already allows for ownership of rodents, for example in the ownership of a pet mouse, which is not permitted with humans.
2. Hart's theory about the nature of law and legal interpretation is referred to as legal positivism and is based upon a premise that law and morality are distinct concept that are not necessarily interrelated. Hart believes that legal rules are not necessarily connected to moral rules. However, he also believes that laws, which are a form of social communication, must be interpreted to be applied. The rules of interpretation are not necessarily part of the law itself, but draw from the greater social environment from which the law was constructed. Therefore, how judges decide to read a particular law becomes part of that law, even if that was not the intent of those who originally drafted the law. Hart believes that there are primary rules governing social behavior in society, which are necessary for successful and peaceful cooperation in society, but may not be considered universal by all society members. Moreover, these social rules are subject to change with evolving social norms. Hart also believes that there are secondary rules that help interpret the primary rules. These secondary rules include rules of recognition that tell people how to determine which rules apply in a particular social context, rules of change that tell people how to alter the primary rules, and rules of adjudication that explain how to determine when a rule has been violated and what to do about that violation.
Dworkin's theory about the nature of law and legal interpretation rejects legal positivism, specifically Hart's theory of legal positivism. Instead, Dworkin's theory is referred to as interpretive, and suggests that the law derives from a constructive interpretation of the institutional history of the legal system. Dworkin suggests that community standards about morality are often wrong, and thus, should not form the basis of the law. Instead, people should look at past legal decisions to explain present laws and how they correlate with modern moral principles. His position is that law as integrity must be the starting point for legal interpretation. As a result, in controversial cases, Dworkin posits that the answer can be found by the right answer thesis. Dworkin's right answer thesis is not based upon the idea that there is a clear right answer to legal scenarios. He rejects that idea, which would be similar to Hart's notion of the Rule of Recognition. Instead, Dworkin argues that people can have opposing viewpoints about whether an answer is right, but that the individual interpreting and applying a law will always come to an answer about difficult questions. In this way, Dworkin suggests an intrinsic relationship between morality and the law, and does not suggest that those interpreting the law should do so without resorting to an examination of either their own personal moral standards or community moral standards.
A proponent of Hart's views would have to examine the question in light of the changing social norms surrounding the issue. The basic moral question is whether it is permissible to patent animal life, especially because of concerns that this could eventually lead to the patenting of human genetic material. Although the dissent and the majority reached very different conclusions, both arguments appear to involve appeals to prevailing social norms in reaching their conclusions. Therefore, both of the arguments appear to look at the secondary laws governing interpretation of the primary laws in reaching their conclusions. The majority focuses on the fact that the modern scientific advances that have made manipulation of mouse genetic material possible also make it possible to do the same thing with humans, which has created an ethical and moral scenario that was not considered when the patent law was written. As a result, the majority concludes that social mores mean that allowing the patent would be immoral. While the dissent dismisses the notion of bringing morality into the discussion of the patent, it is critical to realize that, like the majority, the dissent also discusses morality. For example, the dissent talks about the fact that the boundaries between rodent and human are well-established, so that the case would not provide a slippery slope to the patenting of human genetic material, without acknowledging that the rules about the appropriate treatment of animals are ethical and moral rules. What is very interesting is that both of these perspectives seem reasonable under Hart's rules, as they both incorporate elements of the modern moral position about animals and science, but still arrive at different conclusions.
A proponent of Dworkin's views would have an easier time reconciling himself to both the majority opinion and the dissent. As one would expect with the right answer theses, both of the authors looked at legal precedent to determine an answer that they felt was the right answer. That they came to different conclusions does not negate Dworkin's right answer thesis; instead, it is simply an example of two different parties looking at the law and reaching different right answer conclusions. However, I believe that a supporter of Dworkin would, ultimately, have to disagree with the majority's conclusion. According to the dissent, the Patent Examiner has already allowed patents on living material, specifically fungi. If that is the case, then the majority has failed to distinguish why fungi, undoubtedly a living material, would fall under the umbrella of the patent law, but mice would not. An unexplained departure from precedent seems incompatible with Dworkin's theory of legal interpretation. As a result, one must conclude that the majority's opinion better fits within…