Intellectual Creation (2004)
Dr. ALX is a scientist honored for work related to the human genome project. Among his pioneering efforts concern stem cell research for the cure of Alzheimer’s disease. Under corporate sponsorship, he helped develop a microbe that ate and digested oil spills in the sea.
Now he leads a college team for cancer research in MSS State. The team has experimented on a mouse whose body cells replicate and bear cancerous tumor. Called “oncomouse”, it is a life-form useful for medical research and it is a novel creation. Its body cells do not naturally occur in nature but are the product of man’s intellect, industry and ingenuity. However, there is a doubt whether local property laws and ethics would allow rights of exclusive ownership on any life-form. Dr. ALX needs your advice: (1) whether the reciprocity principle in private international law could be applied in our jurisdiction; and (2) whether there are legal and ethical reasons that could frustrate his claim of exclusive ownership over the life-form called “oncomouse” in Manila? What will be your advice to him?
SUGGESTED ANSWER:
(1) The reciprocity principle in private international law may be applied in our jurisdiction. Section 3 of R.A. 8293, the Intellectual Property Code, provides for reciprocity, as follows: “Any person who is a national, or who is domiciled, or has a real and effective industrial establishment in a country which is a party to any convention, treaty or agreement relating to intellectual property rights or the repression of unfair competition, to which the Philippines is also a party, or extends reciprocal rights to nationals of the Philippines by law, shall be entitled to benefits to the extent necessary to give effect to any provision of such convention, treaty or reciprocal law, in addition to the rights to which any owner of an intellectual property right is otherwise entitled by this Act. (n)” To illustrate: the Philippines may refrain from imposing a requirement of local incorporation or establishment of a local domicile for the protection of industrial property rights of foreign nationals (citizens of Canada, Switzerland, U.S.) if the countries of said foreign nationals refrain from imposing said requirement on Filipino citizens.
ALTERNATIVE ANSWER:
Reciprocity principle cannot be applied in our jurisdiction because the Philippines is a party to the TRIPS agreement and the WTO. The principle involved is the most-favored nation clause which is the principle of non-discrimination. The protection afforded to intellectual property protection in the Philippines also applies to other members of the WTO. Thus, it is not really reciprocity principle in private international law that applies, but the most-favored nation clause under public international law.
(2) There is no legal reason why “oncomouse” cannot be protected under the law. Among those excluded from patent protection are “plant varieties or animal breeds, or essentially biological process for the production of plants and animals” (Section 22.4 Intellectual Property Code, R.A. No. 8293). The “oncomouse” in the problem is not an essentially biological process for the production of animals. It is a real invention because its body cells do not naturally occur in nature but are the product of man’s ingenuity, intellect and industry.
The breeding of oncomouse has novelty, inventive step and industrial application. These are the three requisites of patentability. (Sec. 29, IPC)
There are no ethical reasons why Dr. ADX and his college team cannot be given exclusive ownership over their invention. The use of such genetically modified mouse, useful for cancer research, outweighs considerations for animal rights.
There are no legal and ethical reasons that would frustrate Dr. ALX’s claim of exclusive ownership over “oncomouse”. Animals are property capable of being appropriated and owned’. In fact, one can own pet dogs or cats, or any other animal. If wild animals are capable of being owned, with more reason animals technologically enhanced or corrupted by man’s invention or industry are susceptible to exclusive ownership by the inventor.
ALTERNATIVE ANSWER:
The oncomouse is a higher life form which does not fall within the definition of the term “invention”. Neither may it fall within the ambit of the term “manufacture” which usually implies a non-living mechanistic product.
The oncomouse is better regarded as a “discovery” which is the common patrimony of man.
ALTERNATIVE ANSWER:
The “oncomouse” is a non-patentable invention. Hence, cannot be owned exclusively by its inventor. It is a method for the treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on said bodies are not patentable under Sec. 22 of the IPC.
From the ANSWERS TO BAR EXAMINATION QUESTIONS in CIVIL LAW by the UP LAW COMPLEX and PHILIPPINE ASSOCIATION OF LAW SCHOOLS.
