06 March 2011

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)

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