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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Before You Go…

Thank you for reading this article to the end – I hope you enjoyed it, and found it useful.  Almost every article I post here takes a few hours of my time to research and write, and I have never felt the need to ask for anything in return.

But now – for the first, and perhaps only, time – I am asking for a favour.  If you are a patent attorney, examiner, or other professional who is experienced in reading and interpreting patent claims, I could really use your help with my PhD research.  My project involves applying artificial intelligence to analyse patent claim scope systematically, with the goal of better understanding how different legal and regulatory choices influence the boundaries of patent protection.  But I need data to train my models, and that is where you can potentially assist me.  If every qualified person who reads this request could spare just a couple of hours over the next few weeks, I could gather all the data I need.

The task itself is straightforward and web-based – I am asking participants to compare pairs of patent claims and evaluate their relative scope, using an online application that I have designed and implemented over the past few months.  No special knowledge is required beyond the ability to read and understand patent claims in technical fields with which you are familiar.  You might even find it to be fun!

There is more information on the project website, at claimscopeproject.net.  In particular, you can read:

1. a detailed description of the study, its goals and benefits; and
2. instructions for the use of the online claim comparison application.

Thank you for considering this request!

Mark Summerfield

Tags: Australia, Genetic technology, Patentable subject matter