Friday 20 February 2015
Australian High Court to hear appeal on gene patents
Australia's highest court has granted Yvonne D'Arcy special leave to appeal the Full Federal Court's decision that isolated DNA is patentable subject matter. You can read a summary of the Federal Court decision here.
It appears the appeal will focus on whether isolated DNA is an 'artificial state of affairs' as set out by NRDC, the leading case on patentable subject matter in Australia (and New Zealand). The appellant also argued in favour of applying a US style 'products of nature' exclusion. Myriad countered this argument with comments that highlighted the far-reaching consequences of allowing such an exception, eg, the exclusion of new antibacterial and antiviral compounds. Myriad also argued that isolated DNA was analogous to a chemical compound and fell within the patentability concepts set out inNRDC.
The Court did not provide its reasons for allowing the appeal, but earlier in the hearing the Chief Judge did comment on the debatable significance to be given to legislative inaction. This comment was in response to arguments that the Government had not included isolated DNA or 'products of nature' as exclusions when updating the Patents Act. Maybe the High Court sees this case as an opportunity to confirm the patentability of such subject matter?
The substantive hearing looks likely to be heard in April. We will update you then.