By Damian Slizys --
Following the discussion in Patent Docs of the Australian Senate's gene patent inquiry last December (see "Gene Patenting: Australian Potpourri"), we now expect the findings of the Senate enquiry to be set down on 17 June 2010, following two extensions of time. The inquiry was allegedly initiated, in part, because of the attempts to enforce the Myriad Genetics patents in Australia which relate to the use of BRCA1/BRCA2 genes in breast cancer screening and as isolated products per se. In light of the recent decision in Association for Molecular Pathology v. U.S. Patent and Trademark Office (09cv4515, U.S. District Court for the District of New York), the report will be of major interest. This is particularly the case as many of the proposals put forward to the Senate committee will increase the burden on patentees significantly and/or exclude more than naturally-occurring genes from patentability. For instance, one proposal requires that a patentee must publicly disclose sufficient information to enable the replication of the invention to the same standard as its closest commercial competitor before the payment of each renewal fee. We will provide a report on the enquiry's finding once it has been handed down.
In addition, on 8 June 2010, plaintiff law firm Maurice Blackburn, initiated proceedings in the Australian Federal Court directed to invalidating the Myriad Genetics patents in Australia. Although we have yet to review the pleadings, public statements by Maurice Blackburn indicate that the main legal argument against the patents was one of discovery over invention, but there were also big ethical and philosophical questions about whether the body could be privatised. ''It's a healthcare rights issue and an issue of freedom of research into the fundamental building blocks of our being,'' the lawyers stated. The progress of this case will clearly be of marked interest, particularly as the legal arguments proposed do not sit easily within the established grounds of invalidity under Australian law.
Dr. Slizys is a Partner at FB Rice & Co in Melbourne, Australia.