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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 in...


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