Senate Submissions Overwhelmingly Oppose ‘Gene Patent’ Ban

Senate secretary sorts submissions...

As we have previously reported, the Australian Senate Legal and Constitutional Committee is currently conducting an inquiry in relation to the Patent Amendment (Human Genes and Biological Materials) Bill 2010, which seeks to outlaw the patenting of human genes, and other biological materials that are ‘substantially identical to such materials as they exist in nature’.

The deadline for submissions to the inquiry was Friday, 25 February 2011.  The Committee is due to report by 16 June 2011.

Copies of the submissions received by the Senate Committee have now been published on the web.  To date, 100 submissions have been published – although the deadline has passed, it remains possible that there are more to come. 

We do not claim to have read all 100 submissions in detail.  However, we have looked over them and concluded that if the fate of the Bill were to be decided by a poll of those who have made submissions, it would be soundly defeated!  Of the 100 submissions, we consider that 67 are clearly opposed to the Bill, with only 23 substantially in support of the Bill.  The remaining 10 submissions are mostly supportive of the stated intent of the Bill, i.e. to outlaw the patenting of isolated human genes, but opposed to the actual amendments proposed by the Bill.

A table summarising all 100 submissions is included at the bottom of this article.  The table sets out the identity of each contributor, their disposition (i.e. supportive, opposed or otherwise), and their interest in the subject matter of the Bill.  We have based our description of each contributor’s interest as far as possible on their own words, either in their submissions or on their web site.  If any individual or organisation feels that we have misrepresented the nature of their activities or interest, we would be happy to correct the record – just drop us an email to patentology@gmail.com. 

COMMENTS ON SUBMISSIONS

To start with, we feel that we ought to highlight our own interest in the inquiry, which is set out in submission no. 83.  We do not claim to be unbiased – Patentology is strongly opposed to the Bill, the provisions of which fly in the face of the recommendations of earlier in-depth inquiries, and threaten the integrity of the current  Australian Patents Act.

There is, however, a certain predictability about the position adopted by various contributors.  Those involved in the business of discovering and developing pharmaceuticals, diagnostic tests, and other biological therapeutics, are generally opposed to the Bill, as are legal professionals, including IP lawyers and patent attorneys.

The criticism that will no doubt be levelled at these submissions is the cynical response of ‘well, of course they are opposed, their profits depend upon gene patents.’  This may be so, but it is still necessary to look at the substance of their arguments.  In this case, a degree of self-interest goes hand-in-hand with knowledge and experience of the relevant technologies, the existing state of the patent law, and the realities of the business environment in which these businesses operate. 

At the opposite end of the spectrum, a number of the most strongly supportive submissions are from concerned citizens who, in some cases at least, are quite happy to admit that they have little or no knowledge of the relevant law or science, but are nonetheless opposed to ‘gene patents’ (whatever these may be) as a matter of principle.  This is fine, and everybody is entitled to take their moral and ethical stand, however we would maintain that it is the legal, social and economic ramifications of change to the scope of patentable subject matter that should be in the spotlight here, and we are confident that this is what the Senate Committee will be looking at.

A few other observations regarding the various submissions are set out below.

1. A majority of research institutions, including Universities, public research organisations and independent research institutes, are opposed to the Bill.  This is in contrast to one of the main purported purposes of the Bill, which is to advance scientific and medical research.  We can conclude that a majority of those actually engaged in such research do not consider the proposed amendments to be necessary or desirable.
2. The major government medical research funding body, the NHMRC, is opposed to the Bill (see submission no. 46).
3. The government’s own department of Innovation, Industry, Science and Research, along with the Patent Office (IP Australia), are opposed to the Bill (see submission no. 94).
4. Back on the topic of vested interests, Australia’s leading generic pharmaceutical company, Alphapharm Pty Ltd, is supportive of the Bill (see submission no. 75).
5. A number of submissions make the point that, although the title of the Bill draws attention in particular to the patenting of human genes, there are a wide range of industries that would potentially be adversely affected, including those relating to agriculture and crop science.
6. Submission no. 92 is from Professor Ian Frazer whose public record comments, as he points out himself, ‘on the issues surrounding the Myriad genetics patents on gene sequences relating to breast cancer have been used by others as a justification for the proposed amendments to the Patents Act 1990 that would follow if the bill were enacted.’  However, Professor Frazer is opposed to the Bill on the grounds that it is far broader, and is likely to have more far-reaching effects, than would be necessary to address the concerns that he has previously expressed.

Notably absent from the list of submissions is any contribution from Dr Luigi Palombi.  Dr Palombi is a prominent legal researcher and campaigner against the patenting of genes and other biological materials, and (as we reported here) is supporting the Australian test case seeking revocation of the Myriad BRCA breast cancer gene patent.  Dr Palombi has contributed to previous related inquiries, and was amongst those named in the Senate upon introduction of the Bill as being likely to desire an opportunity to make submissions.

So why no submission from Dr Palombi?  We are speculating, of course, but we have heard that he had a significant hand in the drafting of the Bill.  Perhaps he feels that this is a sufficient contribution and that, in any event, it would be inappropriate or unnecessary to make any submissions in support of his own handiwork!  As always, we can only report what we have heard, so if any reader has better information, please let us know.

SUMMARY OF SUBMISSIONS

The table below briefly summarises the submissions received to date by the Senate Committee.  For those considering reading any of the documents, the PDF file sizes on the Inquiry web site are not a reasonable indication of the actual length of each submission, since some have been scanned at high resolution producing large file sizes.  We have therefore identified, in each case, the number of pages in the document.

No.	Contributor	Disposition	Interest
1	Dr Charles Lawson	Tangential ('pro-competition' postion). (46 pages)	Legal academic
2	Clinical Associate Professor Judy Kirk	Supports intent. (7 pages)	Medical professional (clinician)
3	Mr Adam Johnston	Supports the Bill (24 pages, plus 152 page Master of Laws thesis as attachment)	Unspecified
4	The Royal College of Pathologists of Australia	Supports intent. (5 pages)	Professional body (pathology)
5	Human Genetics Society of Australasia (HGSA)	Supports the Bill. (13 pages)	Professional society (genetics)
6	Mr Christopher Aitchison	Supports the Bill. (2 pages)	Interested citizen
7	Bayer CropScience	Opposed to Bill. (2 pages)	Industry (crop science)
8	Cancer Voices NSW	Supports the Bill. (3 pages)	Consumer organisation
9	The Royal Australasian College of Physicians (RACP)	Endorses HGSA submission – supports the Bill. (1 page, plus 13 page attachment)	Professional society (physicians)
10	Mr Paul McCormack	Supports the Bill. (1 page)	Unspecified
11	Cancer Voices Australia	Endorses Cancer Voices NSW submission – supports the Bill. (1 page)	Consumer organisation
12	Amgen Australia	Opposed to Bill. (9 pages)	Industry (therapeutics)
13	Perth Bone and Tissue Bank Inc.	Opposed to Bill in present form. (1 page)	R&D (bone regrowth therapy)
14	Abbott Australasia Pty Ltd	Opposed to Bill. (7 pages)	Industry (health care, pharmaceuticals)
15	South Australian Government	Supports the Bill. (5 pages)	State Government
16	Consumers Health Forum of Australia	Opposed to Bill in its present form. (2 pages)	Consumer organisation
17	Davies Collison Cave	Opposed to Bill. (17 pages)	Legal profession (patent attorneys & lawyers)
18	Dr Ann Kurts, Dr Mark Lutherborrow and Professor Natalie Stoianoff	Opposed to Bill. (20 pages)	Biotechnology and legal academics
19	Professor Andrew Christie	Opposed to Bill. (5 pages)	Legal academic/ professional
20	Dr Malcolm Lyons	Opposed to Bill. (2 pages)	Patent attorney
21	Mr Doug Calhoun	Opposed to Bill. (11 pages)	Patent attorney (retired)
22	Australian Medical Association	Supports intent. (3 pages)	Professional association (physicians)
23	SciVentures	Opposed to Bill. (4 pages)	Funds management (venture capital)
24	Peter MacCallum Cancer Centre	Opposed to Bill. (5 pages)	Research institute (cancer treatment)
25	Professor Peter Drahos	Supports the Bill. (3 pages)	Legal academic (IP)
26	Liberty Victoria	Supports the Bill. (1 page)	Civil liberties organisation
27	Australian Reproductive Health Alliance	Supports the Bill. (2 pages)	Advocacy group (reproductive and sexual health, women's rights)
28	Group of Eight	Opposed to Bill. (3 pages)	Major research universities
29	Dr Hazel Moir	Broadly supportive of Bill, but no express statement. (8 pages)	Social sciences academic
30	Australian Law Reform Commission	Opposed to Bill. (4 pages, plus copy of 1999 ALRC report on Gene Patenting)	Government commission
31	ChemSkill	Opposed to Bill. (2 pages)	Recruitment, consulting and training
32	Sanofi Aventis	Opposed to Bill. (2 pages)	Industry (health care, medicines, vaccines)
33	National Coalition of Public Pathology	Supports the Bill. (2 pages)	Industry association (public pathology)
34	Australian Institute for Innovation	Opposed to Bill, endorses AusBiotech and WEHI submissions. (4 pages)	Innovation 'think tank'
35	International Federation of Intellectual Property Attorneys (FICPI)	Opposed to Bill, endorses IPTA submission. (11 pages)	Professional association (IP attorneys, international)
36	Foursight Associates	Opposed to Bill. (2 pages)	Life sciences and technology consultants
37	Ms Stephanie Gleeson	Supports the Bill. (5 pages)	Unspecified
38	Metabolic Pharmaceuticals	Opposed to Bill. (2 pages)	Industry (drug discovery and development)
39	Professor Dianne Nicol, Mr Johnathon Liddicoat, Dr Jane Nielsen and Mr Ben Mee	Opposed to Bill. (41 pages)	Legal academics (Centre for Law and Genetics)
40	Dr Chris Dent	Opposed to bill. (48 pages)	Legal academic (IPRIA)
41	La Trobe University	Opposed to Bill. (5 pages)	Research university
42	Roche	Opposed to Bill. (10 pages)	Industry (pharmaceuticals and diagnostics)
43	Ms Elizabeth Gleeson	Supports the Bill. (1 page)	Unspecified
44	St Vincent's Institute of Medical Research	Opposed to Bill. (1 page)	Public research (health care)
45	Grasslanz Technology Limited	Opposed to Bill. (8 pages)	Industry (crop science)
46	National Health and Medical Research Council	Opposed to Bill. (4 pages)	Government research funding body
47	Griffith Hack and Griffith Hack Lawyers	Opposed to Bill. (4 pages)	Legal profession (patent attorneys & lawyers)
48	Law Council of Australia	Opposed to Bill. (7 pages)	Professional association (lawyers)
49	The Institute of Patent and Trade Mark Attorneys of Australia (IPTA)	Opposed to Bill. (22 pages)	Professional association (patent attorneys)
50	Dr Teresa Schafer, Mr Tim Clark and Mr George Raitt (partners in Piper Alderman)	Opposed to Bill. (7 pages)	Legal profession (lawyers)
51	Agrifood Awareness Australia	Opposed to Bill. (1 page)	Industry organisation (agriculture and gene technology)
52	Eli Lilly Australia Pty Ltd	Opposed to Bill. (3 pages)	Industry (medicines)
53	James and Wells Intellectual Property	Opposed to Bill. (4 pages)	Legal profession (patent attorneys)
54	University of Western Sydney, University of Sydney, University of New South Wales, Macquarie University, University of Wollongong and Newcastle University	Opposed to Bill. (5 pages)	Research universities
55	Ms Anna George	Supports the Bill. (7 pages)	Former public servant (DFAT, ambassador)
56	CSL Limited	Opposed to Bill. (3 pages)	Industry (biopharmaceuticals)
57	IVD Australia Limited	Opposed to Bill. (10 pages)	Industry association (in-vitro diagnostics)
58	Hexima Limited	Opposed to Bill. (2 pages)	Industry (agribusiness startup)
59	Walter and Eliza Hall Institute of Medical Research (WEHI)	Opposed to Bill. (30 pages)	Public research (medical)
60	Pfizer Australia	Opposed to Bill. (3 pages, plus attachments)	Industry (pharmaceuticals)
61	Dr Jennifer Leary	Supports the Bill. (10 pages)	Medical professional (hospital laboratory director)
62	Knowledge Commercialisation Australasia (KCA)	Opposed to Bill. (3 pages)	Professional society (public sector knowledge transfer and commercialisation)
63	Association of Australian Medical Research Institutes	Opposed to Bill. (4 pages)	Research association (independent medical research institutes)
64	Garvan Institute of Medical Research	Opposed to Bill. (2 pages)	Medical research institute
65	CropLife Australia	Opposed to Bill. (17 pages)	Industry association (agricultural biotechnology)
66	Sydnovate	Opposed to Bill. (3 pages)	University technology transfer office
67	BioMelbourne Network	Opposed to Bill. (4 pages)	Industry association (biotechnology)
68	Department of Health and Ageing	Supports intent. (2 pages, plus attachment)	Government department
69	GlaxoSmithKline Australia	Opposed to Bill. (8 pages)	Industry (pharmaceuticals and health care)
70	Mylan Inc.	Supports the Bill. (5 pages)	Industry (generic pharmaceuticals)
71	Generic Medicines Industry Association	Supports intent. (7 pages)	Industry association (generic pharmaceuticals)
72	Cancer Council Australia	Supports the Bill. (8 pages)	Non-government organisation (cancer control)
73	Prima BioMed Ltd	Supports intent. (4 pages, plus attachment)	Industry (cellular cancer therapy)
74	Mr Geoffrey Burton	Supports the Bill. (3 pages, plus attachments)	Interested citizen
75	Alphapharm Pty Limited	Supports the Bill. (2 pages)	Industry (generic pharmaceuticals)
76	Merck Serono Australia	Opposed to Bill. (1 page)	Industry (biotechnology, medical science)
77	FB Rice and Co	Opposed to Bill. (6 pages)	Legal profession (patent attorneys)
78	CSIRO	Opposed to Bill. (9 pages)	Public research organisation
79	Mr Craig Patterson	Supports the Bill (1 page)	Interested citizen
80	ResMed Limited	Opposed to Bill. (30 pages)	Industry (medical devices)
81	Genetic Technologies Limited	Opposed to Bill. (5 pages)	Industry (genetic testing)
82	Merck Sharp and Dohme (MSD) Australia	Opposed to Bill. (2 pages)	Industry (pharmaceuticals)
83	Dr Mark Summerfield	Opposed to Bill. (4 pages)	Patent attorney
84	Breast Cancer Action Group NSW	Supports the Bill. (2 pages)	Consumer organisation
85	Biomedical Consulting Services	Opposed to Bill. (3 pages)	Commercialisation consulting
86	Biotechnology Industry Organization	Opposed to Bill. (5 pages)	Trade association (biotechnology)
87	Shelston IP	Opposed to Bill. (5 pages)	Legal profession (patent attorneys)
88	Murdoch Childrens Research Institute	Opposed to Bill. (2 pages)	Independent medical research institute
89	Medicines Australia	Opposed to Bill. (9 pages)	Industry association (discover-driven pharmaceuticals)
90	Grains Research and Development Corporation (GRDC)	Opposed to Bill. (6 pages)	Statutory authority (grains industry R&D funding)
91	Baxter Healthcare Pty Limited	Opposed to Bill. (3 pages)	Industry (health care)
92	Professor Ian Frazer	Opposed to Bill. (2 pages)	Clinician scientist
93	Bristol-Myers Squibb Australia	Endorses Medicines Australia submission –opposed to Bill. (1 page, plus attachment)	Industry (biopharmaceuticals)
94	Department of Innovation, Industry, Science and Research and IP Australia	Opposed to Bill. (37 pages, plus attachment)	Government department and Patent Office
95	Licensing Executives Society of Australia and New Zealand (LESANZ)	Opposed to Bill. (14 pages)	Professional society (licensing professionals)
96	Tasmanian Government	Supports the Bill. (2 pages)	State Government
97	AusBiotech Ltd	Opposed to Bill. (18 pages)	Industry organisation (biotechnology)
98	Australian Academy of Technological Sciences and Engineering	Opposed to Bill. (12 pages)	Independent body (represents eminent applied scientists and engineers)
99	Mooroolbark Technology	Opposed to Bill. (2 pages)	Technology commercialisation and investment
100	Australian Academy of Science	Opposed to Bill. (3 pages)	Independent body (represents eminent scientists)

Tags: Australia, Genetic technology, Patentable subject matter