Wellington
A guest blog - Doug Calhoun's recent sticK blog on potentially crippling effects ofintended patent law changes (see
The opponents of gene patents in Australia are a determined lot. Having failed in their attemptsto persuade senators (twice) and an advisory committee that gene patents should be banned - they arecontinuing with their case in the Australian courts.
The debate on gene patents hasbeen aired three times on SciBlogs’ Code for Life blog, see
As Grant Jacobs noted (in a comment added to his third post on 21 February) the validity of theAustralian patent (equivalent to those being contested in the US) was being tested in a courtroom.The outcome will be known in a few weeks (months).
(I apologise for hijacking Grant’s blog with a couple of lengthy comments I made on his thirdpost. But readers interested in the topic might find them a useful background to this post.)
Over nearly 2 years the Australian senate Community Affairs Committee considered the broadersocial consequences of gene patents before issuing its report in November 2010. While the committeeexpressed its frustration that it did not have much hard evidence about gene patents and theirrelevance to the delivery of diagnostic testing, it did not find any systematic adverse effects. Ittherefore did not recommend any outright ban of gene patents.
The link to that inquiry is
Not to be deterred, Senator Heffernan and his followers introduced a bill into the senate (theday after the first report was published) that would have banned patents for “biologicalmaterials” that were substantially the same as those materials found in nature. That verysweeping ban would not only have caught human DNA sequences but inventions such as microorganisms,non-human DNA sequences, proteins and many others - that have been patented in Australia since themodern biotechnology industry came into flower.
There were a total of 120 written submissions on that bill made to the Legal and ConstitutionalAffairs committee of which 37 were in favour, 78 were against and the remainder either confidentialor neither clearly for or against. There were two days of oral hearings. The majority of thatcommittee recommended against the bill proceeding.
The link to all the material of that inquiry is
At the same time, the Advisory Committee on Intellectual Property (ACIP) was conducting its ownmuch broader review of what ought to be patentable subject matter in Australia. Naturally, in thecourse of their deliberations they considered the patentability of DNA sequences as well. ACIPrecommended that there should be no exclusions of any specific subject matter from being eligiblefor patents. Rather they recommended (in February 2011) that the existing definition, “manner ofmanufacture”, should be replaced by the contemporary wording “an artificially created state ofaffairs in the field of economic endeavour.”
The link to that review is
And in November 2011 the Australian government reacted both to the challenges put to it by thefirst senate committee and to the recommendations made by ACIP. Its response to the main ACIPrecommendation was:
“The Government accepts these recommendations in principle, and will develop legislation todefine patentable subject matter using clear and contemporary language. The Government recognisesthe important role of patents in commercialising health research and the need to provide industrywith certainty within the patent system. The development of this legislation will be subject toconsidered and comprehensive public consultation. This will enable an opportunity to considerbenefits and impacts on the health sector.”
The link to that report is
So the opponents of gene patents will have a challenging time persuading the court that twosenate committees and ACIP got it wrong. And if the court were to rule in their favour, thegovernment has signalled that it does not intend to ban gene patents in its proposed changes to thelaw.
Looking at it from a New Zealand point of view it is apparent that the policy review processinvolved in changing Australian patent law is a far more exhaustive and inclusive than is the casein New Zealand. The Senate Community Affairs Committee hinted that the review process was socomprehensive that it had become paralysis by analysis – but now that log jamb is to be broken ifthe government’s intention becomes action.
~ Doug Calhoun
IP Mentor