Patentability of genetic material - where does it stand today?

This article was first published in the Lexis Nexis Australian Intellectual Property Law Bulletin (newsletter) Volume 26 no 3 September 2013

Key points

• The Federal Court of Australia recently held that an isolated human gene is patentable, as it is a "method of manufacture".
• Contrary to the Australian position, the US Supreme Court held that an isolated human gene is not patentable, as it is a "product of nature", which is excluded from patentability under the US Patent Act.
• The Australian position is unlikely to be affected by the US decision. The Australian government's stance is shifting away from a blanket exclusion and towards implementing safeguards to prevent unconscionable commercial exploitation, such as through research exemptions, compulsory licensing and Crown use, and a ban where commercial exploitation would be wholly offensive.