Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 (15 February 2013)
In a landmark decision, a judge of the Federal Court of Australia has upheld a patent granted to Myriad Genetics Inc, confirming that claims directed to isolated genetic materials – such as DNA or RNA sequences – are in principle patent-eligible.
As I reported at the time, the hearing in this case took place almost exactly a year ago, making the judgment one of the most long-awaited in recent memory, certainly within the patent field. The issue of ‘gene patents’ has been hotly contested in Australia in recent times, with opponents successfully attracting substantial media attention, and introducing proposed legislation to the Australian Parliament (which was subsequently rejected by a Senate inquiry). A further draft bill, again seeking to amend the Patents Act 1990 to expressly exclude genetic materials from patentability, is still drifting somewhere around the corridors of Parliament House. We might expect that this bill will re-emerge in the near future, following the current failure to ban gene patents through the courts.
The Federal Court application seeking revocation of three claims of the Myriad patent (‘the disputed claims’) directed to isolated genetic materials was originally filed back in June 2010 (when this blog was in its infancy). The isolated genes in question are known as BRCA1, which have been found to exhibit certain mutations in women having an enhanced risk of developing breast and ovarian cancer. They are therefore useful in identifying individuals having an increased cancer risk, and can play a role in early detection and treatment of cancers.
The applicants for revocation were the non-profit advocacy group Cancer Voices Australia, and Queensland breast cancer survivor Ms Yvonne D’Arcy (‘the Cancer Voices parties’).
The Federal Court has completely rejected the application for revocation of the disputed claims, finding all three to be eligible for patent protection under the Australian ‘manner of manufacture’ patentability test.
In a landmark decision, a judge of the Federal Court of Australia has upheld a patent granted to Myriad Genetics Inc, confirming that claims directed to isolated genetic materials – such as DNA or RNA sequences – are in principle patent-eligible.As I reported at the time, the hearing in this case took place almost exactly a year ago, making the judgment one of the most long-awaited in recent memory, certainly within the patent field. The issue of ‘gene patents’ has been hotly contested in Australia in recent times, with opponents successfully attracting substantial media attention, and introducing proposed legislation to the Australian Parliament (which was subsequently rejected by a Senate inquiry). A further draft bill, again seeking to amend the Patents Act 1990 to expressly exclude genetic materials from patentability, is still drifting somewhere around the corridors of Parliament House. We might expect that this bill will re-emerge in the near future, following the current failure to ban gene patents through the courts.
The Federal Court application seeking revocation of three claims of the Myriad patent (‘the disputed claims’) directed to isolated genetic materials was originally filed back in June 2010 (when this blog was in its infancy). The isolated genes in question are known as BRCA1, which have been found to exhibit certain mutations in women having an enhanced risk of developing breast and ovarian cancer. They are therefore useful in identifying individuals having an increased cancer risk, and can play a role in early detection and treatment of cancers.
The applicants for revocation were the non-profit advocacy group Cancer Voices Australia, and Queensland breast cancer survivor Ms Yvonne D’Arcy (‘the Cancer Voices parties’).
The Federal Court has completely rejected the application for revocation of the disputed claims, finding all three to be eligible for patent protection under the Australian ‘manner of manufacture’ patentability test.
A judge of the Federal Court of Australia has dismissed the appeal by Research Affiliates, LLC (‘RA’) against two decisions of the Australian Patent Office rejecting two patent applications relating to the construction and use of passive portfolios and indexes for securities trading. The rejections were made on the basis that the claims of the applications were not directed to a ‘manner of manufacture’ – the test under the Australian law for whether a claimed invention comprises patent-eligible subject matter.
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This coming Monday, 4 February 2013, I am giving a three hour lecture on US patent law and practice to a group of Monash University students, many of whom will no doubt be attending the Patent Practice course as part of their requirements to one day become registered Australian Patent Attorneys.
