Biotechnology and patentability: navigating unchartered waters in Australia and the US
The debate over the patentability of isolated DNA has raged around the world. Tania Obranovich compares the two Myriad decisions from the highest courts in Australia and the US and explains how the Australian decision has called into question what had long been thought of as a fundamental pillar of Australian patent law
Myriad's BRCA patents, which claim both breast cancer
diagnostic methods and the isolated BRCA DNA molecules, have
courted significant controversy both in Australia and the US in
recent years. Extensive judicial consideration in relation to
the patent eligibility of isolated DNA culminated in both a US
Supreme Court (USSC) ruling in June 2013 (Associates for
Molecular Pathology v Myriad Genetics) and an Australian High
Court ruling in October 2015 (D'Arcy v Myriad Genetics). Since
these courts represent the final step in the judicial process
in their respective jurisdictions, the unanimous decisions of
both courts that isolated DNA is not patent eligible is
significant not only because it reverses decades of accepted
practice in relation to the patent eligibility of isolated DNA,
but because these decisions cannot be reversed unless either
another case relating to the patent eligibility of isolated DNA
is brought before these courts or the legislature steps
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