The question of whether or not “genes” should be eligible for patent protection continues to be a cause of significant tension around the world in academic, policy and commercial contexts, as well as in the media and other public forums, for wide-ranging reasons.
The primary focus of this paper is an analysis of a recent attempt in Australia to use legislative means to exclude from patent eligibility isolated nucleotide and polypeptide sequences (collectively “isolated sequences”) that are similar to those that exist in nature.
Part 1 of this article gives a brief perspective on some of the relevant scientific, legal and commercial factors that have, over time, led to the general proposition that isolated sequences are patent eligible.
Part 2 articulates some of the key current tensions surrounding isolated sequence patents in the context of legislative reform and current and emerging technology.
Part 3 critiques the attempt to change Australian patent legislation to exclude isolated sequences from patentability.
The article concludes that attempts to legislate to exclude isolated sequences from patenting may be destined to fail because they are simply too difficult to achieve in practice, and even if they were achievable, they have doubtful utility.
Dianne Nicol is a Professor at the Law Faculty at the University of Tasmania. Dianne started her academic career as a scientist, receiving a PhD from Dalhousie University in Canada in 1987. She started studying law after moving to Tasmania in 1992. The broad theme of Dianne’s research in the law discipline is the regulation of biotechnology and human genetics. She is particularly interested in the commercialisation of genetic knowledge and patenting of genetic inventions. She is currently the lead chief investigator on two Australian Research Council funded projects, one on patenting of biotechnology inventions, the other on the role of law in the era of personalised medicine. The patenting project is aimed at understanding the changing roles patenting, licensing and collaboration in innovation in complex areas of technology like biotechnology.
Johnathon Liddicoat BSc (Hons) LLB (Hons) (Melb), LLM Candidate and Research Fellow at the University of Tasmania. His research foci are in doctrinal patent law and the practical use of the patent system, particularly in biotech innovation.
© 2012 Journal of Law, Information & Science and Faculty of Law, University of Tasmania.