Rights & Responsibilities of Biotech Patent Owers

jeremy debeer, University of Ottawa

Abstract

In this article, I identify a legal disequilibrium in Canadian IP law. Recent decisions in Schmeiser and Hoffman illustrate a trend away from accountability for technological innovation and toward according technological innovators more numerous and powerful property rights. I show how this is a result of a failure by the Court to consider biotechnology issues as part of a bigger picture. By looking at these issues though the lens of patent law or tort law in isolation, Canadian courts have held that a patent entitles its owner to all of the rights but none of the responsibilities of ownership. Equilibrium can be restored in this area of the law in one of two ways: One option is to narrow the scope of patent rights. Another is to recognize responsibilities. Practical and policy considerations suggest the latter response is more appropriate. The thrust of my message throughout this paper is that biotech patent owners must start owning up to their ownership obligations.