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11 June 2015Asia-Pacific

Australia’s highest court sets date for Myriad hearing

The High Court of Australia has revealed it will hear oral arguments in the patent dispute between breast cancer survivor Yvonne D’Arcy and molecular diagnostic company Myriad Genetics on June 16 and 17.

D’Arcy is seeking to revoke one of Myriad’s patents related to the BRCA1 gene, mutations of which are associated with the development of breast and ovarian cancer, on the grounds of a lack of “manner of manufacture”.

In Australia, patentable subject matter is defined as a “matter of manufacture”.

In September last year, the full Federal Court of Australia  upheld Myriad’s patent, ruling that isolated fragments of DNA or RNA can be a “manner of manufacture” and are therefore patent eligible.

In February, the  high court granted D’Arcy special leave to appeal against the decision.

Since that decision, there have been further developments that could have a bearing on this case’s outcome.

The Institute of Patent and Trade Mark Attorneys of Australia (IPTA) has asked to intervene in the case as an amicus curiae.

But the application has been opposed by Australia’s solicitor-general, the country’s second law officer after the attorney-general.

Grant Shoebridge, a partner at law firm Shelston IP in Sydney, said that the IPTA only considers intervening in matters of “significant importance”.

“If the court hands down a decision resulting in isolated genes and other isolated biological material being excluded from patentability, it would have the potential to negatively impact on the Australian biotechnology industry and the level of healthcare delivered to all Australians in the future,” he said.

“These are, no doubt, issues that are important to the IPTA, its members and all well-informed Australians. As the peak professional body representing Australian patent and trademark attorneys, it is the IPTA’s role to, among other things, promote improvements in patent laws and regulations.”

Shoebridge said that the IPTA submission—concerning a constitutional law issue—raises a point of law not considered by either Myriad or D’Arcy.

“The IPTA’s submission also brings to light innovation policy issues and the potential negative impact on the Australian biotechnology industry of this case.

“Whatever the outcome of the appeal, I firmly believe the IPTA’s involvement—particularly through presenting informed arguments to the bench of the court—will go a long way towards raising the profile of the intellectual property profession, and correcting some of the misconceptions about the issue of so called gene patenting.”

The federal court’s ruling went against a decision by the US Supreme Court, which in June 2013 ruled that isolated human DNA is not patent eligible, and struck down patents owned by Myriad.

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More on this story

Asia-Pacific
7 October 2015   Australia’s highest court has said that naturally occurring nucleic acid molecules are not patentable, overturning a lower court ruling.

More on this story

Asia-Pacific
7 October 2015   Australia’s highest court has said that naturally occurring nucleic acid molecules are not patentable, overturning a lower court ruling.

More on this story

Asia-Pacific
7 October 2015   Australia’s highest court has said that naturally occurring nucleic acid molecules are not patentable, overturning a lower court ruling.