On 13 June 2013, the US Supreme Court issued its much-anticipated ruling in Association for Molecular Pathology v Myriad Genetics, Inc. The full ‘slip’ opinion is available from the Supreme Court’s website [PDF, 147kB].
As has been widely reported, the decision was unanimous in finding Myriad’s isolated DNA claims to be unpatentable. Justice Thomas authored an opinion on behalf of eight judges, and Justice Scalia concurred with the majority judgment (and concurred in part with the reasoning).
The judgment addresses the fundamental question of whether ‘isolated DNA claims’ are directed to molecules uniquely brought into being by human endeavours, or to information content encoded in those molecules which is simply extracted from nature. The Supreme Court has taken the opposite view on this issue from the majority in the US Court of Appeals for the Federal Circuit (CAFC). A single judge of the Australian Federal Court decided the equivalent case back in February of this year, reaching the same conclusion as the US CAFC, although for different reasons.
With the Australian decision going on appeal, and due to be heard before five judges of the Federal Court (Chief Justices Allsop, with Justices Dowsett, Kenny, Bennett and Middleton) on 7 and 8 August 2013, the question now naturally arises as to whether the Australian court will be influenced by the US decision.
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