By Donald Zuhn --
Last month, the Legal and Constitutional Affairs Legislation Committee of the Australian Senate issued its recommendation on a bill that would have prevented the patenting of biological materials that are identical or substantially identical to materials as they exist in nature (such as genes and proteins). The Patent Amendment (Human Genes and Biological Materials) Bill 2010, which was introduced by Senators Helen Coonan, Bill Heffernan, Rachel Siewert, and Nick Xenophon last November, would have amended Section 18 of the Australian Patents Act 1990 to add "biological materials including their components and derivatives, whether isolated or purified or not and however made, which are identical or substantially identical to such materials as they exist in nature" to the list of inventions that are not patentable.
The Committee's 124-page report included the recommendation that "the Senate should not pass the Bill." In a more detailed discussion of the Committee's conclusions and recommendations, the report states that:
[T]he committee does not agree that the Bill represents an effective solution to the problems which may be caused by patents over human genes and biological materials. In particular, the committee is concerned that proposed amendments in the Bill, which are focused on addressing a specific issue, could have a large number of unintended consequences across the entire patent system with indeterminate impacts on a range of industries and sectors.
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Despite the need for further reform to the patent system, the committee agrees that removing an area of patentable subject matter, as proposed by the Bill, is not an appropriate solution to this complex set of issues.
In a report in The Australian, one of the bill's co-sponsors, Sen. Bill Heffernan, stated that despite the Committee's recommendation, "[t]he fight has just begun" ("Senate patently at odds over genes"). The debate over the Australian gene patenting bill was complicated by another bill, the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011, which would guarantee free access to "patented inventions for research and regulatory activities." While the Legislation Committee acknowledged that the amendments in the Raising the Bar Bill would not resolve all of the issues in the patent system, the committee noted that it preferred the solutions offered in that bill over those in the Human Genes and Biological Materials bill.
For additional information on this topic, please see:
• "Australian Senate to Release Gene Patenting Findings Next Week," June 8, 2010
• "Gene Patenting: Australian Potpourri," December 28, 2009