The Supreme Court will soon hear a case concerning Myriad Genetics and its patents of genes associated with breast cancer. The main issue is whether or not the patenting of this genetic material for the purposes of lab tests is valid.
At least one other country is dealing with the same question through its courts. Australia’s Federal Court ruled on Friday (H/T The Conversation) that the Australian patent for the BRCA1 gene is valid. In short, that there was sufficient work done to create within the patented material an ‘artificial state of affairs’ that made the work patentable. The Judge in the case did not consider it an easy decision.
“The real problem lies in knowing, or rather not knowing, what degree of human intervention is necessary before it can be concluded that the requisite artificial state of affairs exists. It is an especially difficult problem in the present case, not so much because the authorities provide no clear solution to it, but because the problem has an almost metaphysical dimension to it.”
Remember folks, I Am Not A Lawyer, and I’m not Australian. The rest of the judgment provides useful Australian legislative history, suggesting that the country’s Parliament has considered, and may still, refine the requirements for patents related to genetic material. As this is the first judicial action on the matter, the judgment is somewhat conservative – judicially speaking. Recognizing that the legislature may yet act to change the legal landscape, the judge in this case seems disinclined to write new law – which is usually the case.
The Federal Court “shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex area of intellectual property (copyright, patents, trademarks, designs and circuit layouts).” So the case started with this court, and there are possibilities for appeal. The Applicants (plaintiffs) have until March 8 to file an appeal. I would not be surprised if they did.