The Canadian Intellectual Property Office recently posted its July decision relating to this patent application. The Commissioner of Patents rejected claims to “a unit of totipotent plant tissue”; “a unit of plant embryonic tissue” or “a plant embryo comprising a shoot and a radical” as encompassing higher life forms, and thus non-statutory subject matter.

The Commissioner summarized the jurisprudence with respect to lower life forms and cells which are patentable and higher life forms including animals, plants and seeds which are not patentable.

The Commissioner held that the approach to assessing patentable subject matter is based on the form of the claims. It was held that what was being claimed in this case is neither an encapsulated plant cell nor a whole plant but something on a developmental continuum between the two. In the end, the Board was unable to agree with the applicant’s views that the claimed subject matter is comparable to lower life forms; that a plant tissue or plant embryo is like a fertilized egg; and that the totipotent plant tissue, plant embryonic tissue and plant embryos are patentable under the Schmeiser case.