25 February 2011

Anti-Gene-Patents Bill Introduced in Lower House

On 21 February 2011, the Patent Amendment (Human Genes and Biological Materials) Bill 2010 was introduced into the Australian House of Representatives by Liberal Party members Peter Dutton, and Malcolm Turnbull, National Party member John Forrest, and Independent member Rob Oakeshott.

The text of the Bill, which is identical to the corresponding Bill introduced into the Senate last year, is available from the ComLaw site, while Mr Dutton’s first reading speech can be found in the Parliamentary Hansard for 21 February 2011, on pages 29 and 30.

We reported the introduction of the Senate Bill here, where we described the proposed amendments as 'appalling and ill-conceived'.  Our opinion has not mellowed in the intervening period!

Mr Turnbull has previously expressed his views on so-called ‘gene patents’ in the Australian press, as we reported here.

This Bill flies in the face of reports from the Senate Committee Inquiry into Gene Patents, released in November 2010 (see here), and the Report of the Australian Government’s Advisory Council on Intellectual Property (ACIP) of its review of ‘patentable subject matter’, which was released last week (see here).  Both reports concluded that there was no clear case for the introduction of any further express exclusions from patentability in the Australian Patents Act 1990.  The ACIP Report recommends amendment to the Act that are totally incompatible with the proposals in the Patent Amendment (Human Genes and Biological Materials) Bill 2010.

The Senate Bill has been referred to the Senate Legal and Constitutional Committee for inquiry.  As we reminded readers earlier in the week, written submissions to this inquiry are due today, and the Committee is due to report on 16 June 2011.

While we naturally support the democratic process, we are concerned that all of these inquiries involve substantial duplications of effort, and corresponding waste of taxpayer funds, largely to further the interests of a 'moral minority'. 
 
Time and again, substantive reviews taking into account dozens of submissions from informed contributors have reached the same conclusion: that any issues that may currently exist in relation to the grant of patents relating to genetic technologies are best dealt with by strengthening other aspects of the patent law, such as the tests of novelty and inventive step, rather than by introducing additional express exclusions from patentability.  IP Australia's Intellectual Property Laws Amendment Bill (which, as we have recently reported, is currently circulating as a confidential exposure draft) will address the issue of raising the standards for patentability.

In this context, it seems inconceivable that the Patent Amendment (Human Genes and Biological Materials) Bill 2010 could gain the required support in both houses of parliament.  But in the rarefied atmosphere of Canberra the inconceivable can all-too-rapidly move into the realm of possibility!

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