10 October 2015

Ripper Patent Rulling In Oz

The Australian Supreme Court just completely slapped down gene patents, which, with a bit of common sense, should be an end to that particular abomination in IP land:
Australia's highest court has ruled unanimously that a version of a gene that is linked to an increased risk for breast cancer cannot be patented. The case was brought by 69-year-old pensioner from Queensland, Yvonne D'Arcy, who had taken the US company Myriad Genetics to court over its patent for mutations in the BRCA1 gene that increase the probability of breast and ovarian cancer developing, as The Sydney Morning Herald reports. Although she lost twice in the lower courts, the High Court of Australia allowed her appeal, ruling that a gene was not a "patentable invention."

The court based its reasoning (PDF) on the fact that, although an isolated gene such as BRCA1 was "a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed." Since the information stored in the DNA as a sequence of nucleotides was a product of nature, it did not require human action to bring it into existence, and therefore could not be patented.

Although that seems a sensible ruling, the pharmaceutical and biotechnology industry has been fighting against this self-evident logic for years. The view that genes could be patented suffered a major defeat in 2013, when the US Supreme Court struck down Myriad Genetics' patents on the genes BRCA1 and the similar BRCA2. The industry was hoping that a win in Australia could keep alive the idea that genes could be owned by a company in the form of a patent monopoly. The victory by D'Arcy now makes it highly likely that other judges around the world will take the view that genes cannot be patented.


Striking down gene patents in Australia, as in the US, clears the path for new entrants to the gene testing market, which is likely to drive down prices. It could also spur more biomedical innovation by allowing researchers freedom to investigate previously patented genes and develop new therapies, without fearing potential lawsuits.

If the judgement is followed by courts in other jurisdictions, and the whole idea of gene patents is rejected, the number of people whose lives could be saved will be correspondingly greater.
It has been patently* clear for decades that isolating genes is a process of discovery, and not invention, and hence they should not be covered by patents.

The biotech industry's counter-argument has always been, "But we want our money!:
In a statement, Myriad also expresses its disappointment with the ruling. "The High Court's decision comes at a critical time when we're entering the golden era of personalized medicine," it says, as GenomeWeb reports. "In order for personalized medicine to become a reality, strong patent protection is essential because it provides the research-based companies like Myriad with an incentive to continue to invest in R&D."
(emphasis mine)

Basically, they are arguing that if we won't allow them to patent their discoveries, they will take their marbles and go home.

There are two things wrong with this:
  • Patents are for inventions, not discoveries.
  • Allowing for rent seeking through patents makes it more likely that genetic products will will be released without adequate testing, because the potential profits are so huge.
And that is ignoring the fact that it is taxpayer funded research that have led to these discoveries.

*Pun not intended.


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