Labor backbencher Melissa Parke is set to introduce a private member’s bill into federal parliament to ban patents on genetic material. The government recently passed new legislation, the Raising the Bar Act, which allows researchers access to patented genes.

But Parke and Liberal Senator Bill Heffernan (a fellow avid supporter of abandoning gene patents) believe there is an omission in the legislation, which they aim to rectify. Four thousand human genes have already been patented and the two politicians want to ban all patents on human genes.

Crikey spoke to Dr Matthew Rimmer, an Australian Research Council Future Fellow and intellectual property law expert at the Australian National University to find out why gene patenting is so divisive …

What is gene patenting and why is it so controversial?

Some companies have been patenting individual human genes, claiming the rights to those genes under intellectual property law. This means that those companies can theoretically establish a monopoly on new medical treatments or procedures which may be of benefit to a large section of the community. This has the potential to make innovative medical treatments unaffordable by the people who need them, say critics.

Rimmer says there is a backlash against the push to patents by civil society groups and dissenting politicians and that even the courts have become divided over the issue.

“The classic controversy revolves around laws of nature and abstract ideas which are outside patentable subject matter,” Rimmer told Crikey. “The debate has previously revolved around certain genes relating to breast cancer and ovarian cancer, which has caused controversy in the EU, US and Australia. The really complex question is in determining what is a product of nature and what is a scientific invention. It is hard to draw lines of distinction.”

Parke appeared on Lateline on Monday arguing that genetic information belongs to everyone, not just corporations. “Well I think the fundamental issue is that genes … contain fundamental information about the human body that should be freely available to people everywhere. It should not be locked up in the hands of private corporations,” said the MP.

What efforts have been made before to prohibit gene patents?

Rimmer says the current debate gives him a “feeling of déjà vu”. “We’ve had a rolling, inconclusive debate which has been taking place since the 1970s since Genentech started filing patents,” he told Crikey.

“Various efforts have been made in Australia in the 1990s and the 2000s to prohibit gene patents. In the 1990s the Australian Democrats led the push and it has been taken up by Liberal Senator Bill Heffernan more recently. The Heffernan bill [2010] was unsuccessful because it was too broad, with ambiguous and unclear definitions,” he explained.

The Liberal Senator is again involved, helping to draw up the bill with Parke and arguing for it in his own party.

“As we have seen in the past, the broader the bill is, the less likely it is to get up,” said Rimmer. “If Melissa Parke can draft a prohibition bill which has the clarity required it might get through, although there would need to be broader consensus amongst the major political parties to get up such a prohibition.”

In 2010 a New York federal court ruled that patents on two genes that produce breast cancer are invalid, although in 2011 a US appeals court determined that companies can patent genes. A similar case is currently before the Federal Court of Australia, challenging gene patents relating to breast and ovarian cancer, which the US company Myriad Genetics holds.

Did the Raising the Bar Act do enough to protect research on patented genes?

“The Raising the Bar bill did contain some reforms that could be applied to gene patents — such as raising patent criteria, such as the standard of utility, and introducing a defence of experimental use,” said Rimmer.

“However, the Raising the Bar bill did not address patentable subject matter. The Raising the Bar bill needed proper committee debate in Parliament. It was railroaded through. It would’ve been worthwhile to review that further, especially in regard to developments in the US. The bill was rushed through without proper scrutiny,” he argues. Rimmer added: “Melissa Parke and I differ on options. She is very focused on prohibition. She takes a human rights perspective, that patent law should respect human rights, especially the right to health and the right to freedom of research.”

What does the new bill need to incorporate?

It needs to take a broader view of intellectual property and biotechnology, says Rimmer. “The topic of access to essential medicines has been overlooked,” he said. “I find it peculiar that there’s been such inertia in the federal Parliament around these issues. Some medications are important for HIV aids, malaria, tuberculosis and other infectious diseases. It’s important to introduce a patent reform in line with Doha [the 2001 Doha Declaration], but given the cuts to foreign aid in the recent federal budget it looks unlikely.

“We need to take on the full gamut of new technologies, being developments in IT, biotechnology, stem cell technology, nanotechnology and synthetic biology,” Rimmer told Crikey.  There is a need to consider the impact of biotechnology on agriculture, health and medicine, energy and climate change.”

Peter Fray

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