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ILN Today Post

Gene Patenting Disallowed

The High Court has refused to allow a patent claim to an isolated gene.

D’Arcy v Myriad Genetics Inc [2015] HCA 35 (7 October 2015).

Despite 6 judges below agreeing that the claims were patentable, the 7 member High Court has held that the claims are not a manner of manufacture within the meaning of section 6 of the Statute of Monopolies and section 18 Patents Act.

French CJ, Kiefel, Bell & Keane JJ (and Gordon J separately) seem to have been persuaded largely by arguments of high policy, namely the need to avoid gene patenting having a ‘chilling effect’ on medical procedures and innovation. [8], [93], [259]-[264].  The majority also emphasised that the claims, properly understood, concentrated on the genetic information rather than the chemical composition or any method of creating the product.  [90].  This was observed to be in accordance with the approach taken by the US Supreme Court to the same patent application.

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