Feb 18, 2013

Crikey Clarifier: how you can patent (isolated) DNA

A Federal Court decision on DNA patents threw up some interesting questions on what is and isn't intellectual property. Patent and trademark attorney Glen Gordon explains the implications.

Can you patent DNA? The Federal Court said yes on Friday — at least in “isolated” form. Let me explain …

In Cancer Voices Australia v Myriad Genetics — over the right to patent so-called isolated DNA that indicates a mutation that can cause breast cancer — Justice Nicholas found in favour of patent owner Myriad.

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4 thoughts on “Crikey Clarifier: how you can patent (isolated) DNA

  1. Gavin Moodie

    Thanx for this helpful clarification. Mightn’t the computer program in Research Affiliates be protected by copyright?

  2. Lachlan Mullane

    In both cases I would agree that the Federal Court applied the correct interpretation of current Australian Patent Law and arrived at sensible decisions.

  3. Dogs breakfast

    It’s a wonderful example of the law being an ass. Of course the gene was not produced by the company, and as it is found in something like 20% of women, can hardly be considered ‘non-natural’.

    It’s an absurdity built on a lie. It may (or very well may not) be technically legally correct, but it is ridiculous.

    I could understand the law recognising the patent to the test that found the gene, but not the gene itself. Applying some 1954 precedent to the identification of gene technology just tends to highlight how far behind the law will alwaus be. If the law is incapable of making such a differentiation, then refer to the opening sentence.

    It is as absurd as the situation where non-GM farmers are sued by Monsanto for having GM genes in their crops because they literally blew in. While a legal boffin might think it reasonable, it doesn’t pass the common sense test.

    Heading down vastly complex legal labyrinths might be intellectualy stimulating for some, the inability to recognise that you have long since left planet earth is a substantial weakness in the study and application of law.

    If this is the correct interpretation of the law, then I do hope our legislators are bright enough to change the law.

  4. beetwo77

    I find it hard to believe the case of genetic patents won’t be resolved by an act of parliament. Surely this fails the public interest and at some point intervention will happen, at least in Australia. Don’t hold any hope for the US.

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