Gene patents in Australia — an ongoing saga

By Peter Kerr 23/05/2012

By guest blogger Doug Calhoun

In an earlier guest blog I commented on the gene patent debate inAustralia.  My conclusion then was that the opponents were a determined lot.  That observation has been reinforced by yet another initiative in the form of a proposed private member’s bill.  This was reported in the ABC programme ‘Lateline’ on 14 May.  The programme and a transcript are at the link:

I was sufficiently annoyed at the lack of any balance in the report to respond to their invitation to comment.  The following is what I said:

Your story on gene patents is unbalanced, it omits several important facts and it repeats a discredited myth.  For the other side of the story I refer you to this post I made on a science blog earlier this year:

The myth is:

‘Four thousand human genes have been patented already – that’s 20 per cent of the human genome.’ ‘Already 4,000 of these genes have been patented by organisations hoping to profit through exclusive research on them.’

The 4,000 figure is based on one 2005 article in Science.  (And the patents referred to areUS patents, not Australian ones.)  That article has been misinterpreted and its conclusions misrepresented.  For an in depth analysis of why I refer you here:

While Dr Oliver may be an eminent physician, his knowledge of patent law does not appear match his medical expertise.  He stated:

‘Look, if you can just get a patent for just discovering the presence of a gene, then you really block everyone else from being able to work on that gene. And so we are saying that that’s not what patent law should be. It should be about an inventive step, then you can have the patent.’

The Patents Act requires that a discovery must have a practical usefulness before a patent can be granted.  The need for this was reinforced with the passing of the Raising the Bar Act.  That requires the patent applicant to show a ‘substantial, specific and credible’ usefulness before a patent is granted.  The change and the existing law require far more than ‘just discovering the presence of a gene.’  An inventive step is yet another requirement that must be present along with usefulness before a patent can be granted.

Suzanne Smith expressed an incomplete understanding of how cures get to patients when she stated:

‘At stake here is the future of cancer therapies. If an organisation can monopolise a gene, that means the world’s scientists can’t collaborate and swap their results. This could potentially delay a cure for cancer or the invention of a vaccine.’

There is much more to making cures for cancer available than scientists collaborating and finding a potential cure.  The initial promising results must go through patient trials to prove that they work and that they are safe before a cure can be made generally available.  And for many new cures, half or more of the patent life may be up before a cure is approved and a patent owner gets any return on their investment.   A patent gives exclusivity in respect of a defined invention for a maximum term of 20 years.  (A fact nowhere mentioned in your report.  The Myriad patent expires inAustraliain 2015.)  After that anyone can use it.  The purpose of a patent is to motivate investment in taking a promising research result to the medical marketplace.  Those who are promoting the ban on gene patents do not explain what will drive the commercialisation of ‘targeted therapies in cancer based on genes and their products’ if they succeed.

The suggestion that the world’s scientists can’t collaborate and swap their results because of the gene patents is simply wrong.  Over 8,000 scientific papers have been published on the BRAC genes since the patent was granted.  Part of the patent bargain is that the patent document must fully describe the invention and how to put it into practice.

While interviewers have no control over what their guests have to say, responsible reporters should at least do rudimentary fact check before making supportive statements like those that Suzann Smith made here.  And on the question of balance you might have mentioned that two different senate committees and the Advisory Council on Intellectual Property have all considered the case put by Dr Oliver and Melissa Park; and all have declined to recommend banning gene patents.  (See my blog post linked above for the details.)

And as for the throwaway line that AusBiotech were unable to comment, how much warning were they given?  It sounds like a cheap producer’s trick to give someone five minutes warning and then pretend that this equates to balanced reporting.

The reply ABC sent me was:

‘Thank you

Thanks for your message. Your input is important to us.

Please Note: The ABC’s Current Affairs department welcomes feedback on its programs. Your email will be passed on to those responsible for producing the program. Emails containing general comments or suggestions and those offering personal opinion will be noted but may not receive a reply. Any emails relating to complaints concerning accuracy, impartiality and objectivity will be considered by ABC Audience and Consumer Affairs. In this case, please be aware that it may take up to four weeks for a response to be forwarded. We will not respond to anonymous emails and we are unable to help people with research for school projects, student assignments and enquiries unrelated to our service.’

I await their response with interest.


            ~ Doug Calhoun

IP Mentor

Serial Stirrer


0 Responses to “Gene patents in Australia — an ongoing saga”

  • Doug,

    Excuse if this appears ‘short’ in tone, that’s not my intention – I’m very pushed for time and am typing this flat out off the top of my head. I’m jut trying to make you aware of how your presentations of this are being perceived to others; please don’t take it personally.

    I have wanted to reply to your now many articles on this topic, but simply haven’t time and won’t for the upcoming while.

    No offence, but my own impression is that you wish to ‘bulldozer’ your view of this issue (perhaps because you wish to influence some process in NZ?). I’m not getting the impression of a willingness to relate the full range processes and products available to companies to commercialise in this area. (I emphasise impression – this is about how your words are reading, not you personally.)

    Certainly this statement makes me wonder where you are coming from: “Those who are promoting the ban on gene patents do not explain what will drive the commercialisation of “targeted therapies in cancer based on genes and their products” if they succeed.” Aside from that this looks awfully like putting words in others’ mouths to frame them, perhaps you could explain how patenting gene sequences would block protecting diagnostic kits, therapeutic agents or medical/diagnostic services? (i.e. rather than “just” claim that blocking so-called gene patents will.)

    SImilarly, you seem to frequently, to my reading, offer ‘argument by authority’, literally as it happens, citing regulatory authorities. Just a thought: it’s a logical fallacy – try presenting argument by the weight of what is offered, not who says it and you might be better received (at least by me!). That ‘X’ said something doesn’t make it right; if they’re in error your pointing at it and saying ‘we should too’ would amount to a ‘yes man’ type argument where you’d ask NZ to say ‘yes’ because some ‘authority’ elsewhere did, rather than because of what was done there.

    To my impression (and frustration) I’m still wondering if you fully understand the science issues, without which I you can’t see how you can fully understand/appreciate what the concerns are. By way of example, your last comment to me on my blog on this topic—I recall your reply being in response to my correcting an error understanding the science on your part—you unwitting shifted goalposts in suggesting another example suggesting you weren’t fully grasping the science-related issues. (I never found time to reply, sorry.)

    You could, for example, try an approach encourage researchers to relate their concerns and focus on relating that to what was argued (and avoid that ‘authority X’ concluded ‘Y’). Speaking for myself, I think it’d be more useful, certainly it’s more the approach a science forum would appreciate on an issue.

    (I haven’t seen the ABC show; I simply haven’t time!)