BIO 2015: Australia may block gene patents, suggests NZ lawyer

Australia could be going down the road of no longer allowing gene patents, New Zealand-based patent lawyer David Nowak said at the BIO International Convention yesterday.

The High Court of Australia on Tuesday, June 16, heard the appeal in the case between cancer survivor Yvonne D’Arcy and molecular diagnostics company Myriad Genetics.

The full Federal Court of Australia ruled last September in favour of Myriad and upheld its patents, which cover the BRCA1 gene. Mutations of the BRCA1 gene are associated with an individual’s chance of developing breast and ovarian cancer.

Nowak a senior associate at Henry Hughes IP, said that after reading the high court hearing’s transcript, it looked like Australia may be going the way of the US and no longer allowing patents that cover isolated genetic material.

He added, however, that this approach would be limited to just genes, which encode information, rather than small molecules that have been isolated from naturally occurring matter.

A final decision on the Myriad case in Australia would be persuasive in New Zealand, he added.

Nowak was speaking at a BIO session that contrasted patentable subject matter in jurisdictions around the world. While the US does not allow isolated genetic material to be patented, Canada and the EU take a different view.

Carmela De Luca, a partner at Bereskin & Parr in Toronto, said that she expects isolated genetic material to remain patentable in Canada, though she noted a pending case where the Children’s Hospital of Eastern Ontario (CHEO) has sought a declaration of non-infringement of five patents owned by Massachusetts biotechnology company Genzyme.

The hospital wants to offer its patients a test for heart disorder Long QT syndrome, which is covered by the five patents, but does not wish to pay a royalty.

The  2015 BIO International Convention is taking place in Philadelphia from June 15 to 18.

This story was first published on  LSIPR.