Four Senators introduced the Patent Amendment (Human Genes and Biological Materials) Bill 2010 on November 24.
It seeks to amend the Patents Act 1990 to exclude from patentable subject matter "biological materials including their components and derivatives, whether isolated or purified or not and however made, which are identical or substantially identical to such materials as they exist in nature".
"I find it difficult to believe that the government would want to make such an extreme amendment," said Tania Obranovich, a partner of Davies Collison Cave.
The Bill was introduced just days before a Senate Committee report strongly objected to the approach of IP Australia in allowing gene patents, but did not recommend an outright ban.
Two of the senators who introduced the Bill - Rachel Siewert and Bill Heffernan - were respectively a chair and a member of that Committee.
On November 26 the Bill was referred to The Legal and Constitutional Affairs Committee, which has been given until June 16 2011 to produce a report.
"The bill gives an extraordinarily broad definition of material that would no longer be capable of being patented - it extends well beyond just genetic material," said Wayne Condon, a principal of Griffith Hack.
But Luigi Palombi, an academic at the Australian National University and the University of Sydney, said that the ban needed to be broad: "The phrase gene patents is just a convenient abbreviation. The objective has always been to look at how patent on naturally occurring materials affect the health system," he said.
"There are plenty of precedents that make it clear that naturally occurring biological material is not patentable subject matter," he added.
Gene patents have in part become a high-profile issue in Australia as a result of controversy over the licensing by a company called Genetic Technologies of the BRCA1 and BRCA2 tests, which are owned by Myriad Genetics and are under scrutiny in Court in the US.
But Obranovich pointed out that this Bill would not affect patents on diagnostic tests. "Banning gene patents is never going to solve the problems that people are talking about," she said.
The proposed legislation is a private member's bill, and these traditionally do not have a high chance of becoming law. But Obranovich and Palombi both said that Australia' fragile coalition government has created a situation in which it could pass.
Australia's July General Election produced a Hung Parliament and the government of Labor Prime Minister Julia Gillard relies on the support of Green and Independent MPs.
Of the four Senators who sponsored the Bill, Helen Coonan and Bill Heffernan are from the Liberal Party, Rachel Siewert is a member of the Australian Greens and Nick Xenophon is an Independent.
In the House of Representatives, Independent Member Rob Oakeshott, a key supporter of the Gillard government, and Liberal Member Peter Dutton are said to be ready to introduce an equivalent Bill when the House sits next February.
"If ever there was a time when a private members bill might progress forward, it's now," said Obranovich.
The Bill comes at the same time as a review by IP Australia of the country's patent law and ahead of a review of patentable subject matter by the Australian Council on Intellectual Property, which is due to report early in 2011.
Palombi called on the government to appoint a government committee "to overhaul the entire system from the ground up" and conduct a review of the value of the entire patent system. "The time for major reform of the Australian patent system is upon us," he said.
