Gene patents – a lawyers’ trick?

On Tuesday night Professor Peter Cashman gave an informative lecture at the University of Sydney on the patentability of genes.

As a member of the legal team advising Cancer Voices Australia and Ms Yvonne D’Arcy in the Australian breast cancer gene patent proceedings (which we previously blogged about here), Professor Cashman’s lecture centered on the key issue in that proceeding – whether or not isolated genes are patentable inventions under the Patents Act 1990. 

Unsurprisingly, Professor Cashman was of the view that the answer to that question is NO.  He spoke about the argument advanced by the US patentee Myriad Genetics, Inc that isolation of the genes altered the characteristics of the DNA such that the isolated gene is more than a mere (unpatentable) discovery.  This argument, Professor Cashman said, has been referred to by commentators in the US as a “lawyers’ trick”.  The “lawyers’ trick” has not yet been successful in the US, and is still to be ventilated in the Australian courts.

Those of us interested in gene patents will be watching the Cancer Voices Australia case closely.  The case has a second directions hearing scheduled for next week.  It is also worth noting that the reporting time for the Senate Inquiry into Gene Patents has once again been extended, this time to 2 September 2010.

Professor Cashman is a barrister and Kim Santow Chair in Law and Social Justice at the University of Sydney. 

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