In an interesting development, contrary to the finding of the US
Supreme Court in a similar case in the United States, the
Australian Federal Court in D'Arcy v Myriad Genetics Inc.
[2014] FCAFC 115 has unanimously upheld a previous Federal
Court decision that isolated gene sequences are
patentable.
As in the United States, the case in this matter involved a
Myriad Genetics patent over an isolated, but naturally occurring,
BRCA1 gene, which is used in diagnostic testing for breast
and ovarian cancer. Australia does not allow patents to be granted
over naturally occurring things, unless there is "human
intervention that creates an artificial state of affairs".
Although the appellants in this case contended that isolated
nucleic acids are not materially different to naturally occurring
nucleic acids and are hence products of nature that cannot form the
basis of a valid patent, the respondents disagreed and argued that
isolated nucleic acids in fact do differ from
