This case note analyses the High Court’s recent landmark decision in D’Arcy v Myriad Genetics Inc  HCA 35. In three separate judgments ultimately united on the result, the High Court held that patent claims to isolated human DNA used in testing for breast cancer were not a ‘manner of manufacture’ within the meaning of s 6 of the Statute of Monopolies. The claims were therefore not patent-eligible subject matter in Australia. It is submitted that the plurality’s new factorial approach to patentability for new classes of claims rearticulates the approach propounded in the High Court’s seminal decision in NRDC. D’Arcy’s new guiding factors therefore realign the subject matter inquiry with its true nature, which turns on, in the plurality’s words, the ‘historically contingent concepts of patent and invention’. The note concludes by examining three of the most pressing consequences of D’Arcy’s reasoning for Australian patent law.
Final year BA-LLB student at the University of Tasmania in 2016, research assistant at the Centre for Law and Genetics, Co-Student Editor of the Journal of Law, Information and Science in 2015 and Co-Student Editor of the University of Tasmania Law Review in 2016. The author would like to thank both Professor Dianne Nicol for her insightful comments and Mr Daryl Wong for his feedback. The author also warmly thanks the two anonymous reviewers for their considered and thoughtful comments.
© 2012 Journal of Law, Information & Science and Faculty of Law, University of Tasmania.