Australian Courts to Take Look at Gene Patents

I've made several posts on the gene patent issue.  See here and here for starters.  I also wrote a post pate last week discussing the notion of patent pools as a possible solution for governing gene patents.  A pool in this area would potentially provide the industry room to operate without being overly encumbered from restrictive IP or bearing too high a licensing expense.

I tend to favor the approach intellectually - but am uncertain as to whether the economics of the industry really will allow its development.  The concept of pools would be most applicable to the area od diagnostic genetic testing -- but it is possible (if not outright likely) that individual patent holders may find their property is more attractive alone than in a pool.  This is an area that will have to play out.

While the Sweet ruling in the Myriad BRCA 1 & 2 case made for great headlines, I was not expecting much practical to derive from it until Myriad had the opportunity to pursue its position further through the appeals process. From what I can read, it still seems to me that most legal experts are expecting that the Sweet ruling will not survive the appeals process intact -- and even if it does -- the downstream effects of the ruling will take a while to emerge in the market.

So given some of this, I wasn't really expecting to see additonal courts looking at the question yet.  From Pharmalot blog, I picked up this link to a story from the age.com that indicates the Australian courts will now essentially do its own version of the Myriad BRCA and BRCA patent challenge. Respondents in this case include Genetic Technologies (Aus), Myriad Genetics (US), Centre de Reserche de Chul (Can), and The Cancer Institute (Japan). The case may well determine if the 400+ gene patents issued in Australia will remain in private hands or become part of the public domain.

The ruling here will be intriguing and likely will continue the anti-gene patent wave or stem the tide.

Posted by Bruce Lehr June 8th 2010.

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[bigredbruce]

Kevin Noonan reports in his Patent Doc blog that the Australian Senate will release its gene patent findings. The findings are expected to place restrictions on gene patents in AUS.

This is particularly the case as many of the proposals put forward to the Senate committee will increase the burden on patentees significantly and/or exclude more than naturally-occurring genes from patentability. For instance, one proposal requires that a patentee must publicly disclose sufficient information to enable the replication of the invention to the same standard as its closest commercial competitor before the payment of each renewal fee. We will provide a report on the enquiry's finding once it has been handed down.

http://www.patentdocs.org/2010/06/gene-patenting-in-australia.html