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Australia High Court to tackle Myriad

Peter Leung, Hong Kong

The Australia High Court will look into the patentability of isolated genetic molecules

The patent at the centre of the dispute (Australian patent 686004, held by Myriad Genetics) covers the isolated BRCA1 gene and is the Australian analogue of the patent that was struck down by the US Supreme Court.

Cancer Voices Australia challenged the validity of the patent, arguing that the isolated molecules were not materially different from the ones found in nature and thus the patent does not meet the manner of manufacture requirement. The Federal Court, as well as the Full Federal Court on appeal, sided with Myriad Genetics.

According to practitioners, the different conclusions reached by the Australian Full Federal Court and the US Supreme Court stemmed largely from their differences in approach. While the US Supreme Court looked largely at the information contained within the gene, the Australian court focused on the structure and the functioning of the isolated molecule.

See here for Managing IP’s analysis of the Full Federal Court’s decision.


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