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A guest blog – Doug Calhoun’s recent sticK blog on potentially crippling effects of intended patent law changes (see here) encouraged some healthy discussion (including on SciBlogs). In the interests of helping to ensure that upcoming legislation gets it right for New Zealand, Doug continues to enlighten.

The opponents of gene patents in Australia are a determined lot. Having failed in their attempts to persuade senators (twice) and an advisory committee that gene patents should be banned – they are continuing with their case in the Australian courts.

The debate on gene patents has been aired three times on SciBlogs’ Code for Life blog, see here, here, and here:

As Grant Jacobs noted (in a comment added to his third post on 21 February) the validity of the Australian 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 third post. 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 broader social consequences of gene patents before issuing its report in November 2010. While the committee expressed its frustration that it did not have much hard evidence about gene patents and their relevance to the delivery of diagnostic testing, it did not find any systematic adverse effects. It therefore did not recommend any outright ban of gene patents.

The link to that inquiry is here:

Not to be deterred, Senator Heffernan and his followers introduced a bill into the senate (the day after the first report was published) that would have banned patents for ‘biological materials’ that were substantially the same as those materials found in nature. That very sweeping 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 the modern biotechnology industry came into flower.

There were a total of 120 written submissions on that bill made to the Legal and Constitutional Affairs committee of which 37 were in favour, 78 were against and the remainder either confidential or neither clearly for or against. There were two days of oral hearings. The majority of that committee recommended against the bill proceeding.

The link to all the material of that inquiry is here:

At the same time, the Advisory Committee on Intellectual Property (ACIP) was conducting its own much broader review of what ought to be patentable subject matter in Australia. Naturally, in the course of their deliberations they considered the patentability of DNA sequences as well. ACIP recommended that there should be no exclusions of any specific subject matter from being eligible for patents. Rather they recommended (in February 2011) that the existing definition, ‘manner of manufacture’, should be replaced by the contemporary wording ‘an artificially created state of affairs in the field of economic endeavour.’

The link to that review is here:

And in November 2011 the Australian government reacted both to the challenges put to it by the first senate committee and to the recommendations made by ACIP. Its response to the main ACIP recommendation was:

‘The Government accepts these recommendations in principle, and will develop legislation to define patentable subject matter using clear and contemporary language. The Government recognises the important role of patents in commercialising health research and the need to provide industry with certainty within the patent system. The development of this legislation will be subject to considered and comprehensive public consultation. This will enable an opportunity to consider benefits and impacts on the health sector.’

The link to that report is here:

So the opponents of gene patents will have a challenging time persuading the court that two senate committees and ACIP got it wrong. And if the court were to rule in their favour, the government has signalled that it does not intend to ban gene patents in its proposed changes to the law.

Looking at it from a New Zealand point of view it is apparent that the policy review process involved in changing Australian patent law is a far more exhaustive and inclusive than is the case in New Zealand. The Senate Community Affairs Committee hinted that the review process was so comprehensive that it had become paralysis by analysis — but now that log jamb is to be broken if the government’s intention becomes action.

~ Doug Calhoun
IP Mentor