Ms Melissa Clarke MP, a Labor Party member and the federal member for Freemantle, publicly called for an amendment to the Patents Act 1990 (Cth) (Patents Act) that would prevent entities patenting human genes. The issue was the subject of a report by the Australian Law Reform Commission which was tabled in Federal Parliament in August 2004. The report was also used as a submission to the incomplete Senate inquiry conducted by the last Parliament.
At the moment, several companies own genes linked to disease or illness in Australia, including genes related to epilepsy and breast cancer. Those companies assert that they are entitled to decide what medical research is conducted on those genes and who undertakes that research. Ms Clarke said:
“In 2008 a Melbourne company, Genetic Technologies, ordered all Australian hospitals and clinical laboratories to stop testing for breast cancer as it claimed that such testing infringed the exclusive licence it had obtained from US genetics company, Myriad. There was a public outcry and the company backed down, but they still claim they have the legal right to insist upon nobody else doing it.”*
At the moment there exists a panoply of problems with patent law in relation to genes. Once a gene is patented, research on that gene is certain to be expensive considering that licensing costs must be paid, and these directly and unequivocally stagnate useful medical research in Australia. Public health is a victim of these patents not only due to the fact that research is more expensive, but also thanks to the increased expense of testing for genes in people for which they may pose a health risk.
Submissions to the commission’s inquiry included some that claimed that those granting patents for genes were not sufficiently qualified or knowledgeable to do so, and as a result such patents were approved far too frequently when compared with the patent offices of other countries. It is indeed true that gene patents generally cover broad subjects and are essentially too general and abstract to be useful in their own right.
All the aforementioned issues could be addressed without disallowing gene patents entirely, and thus the commission recommended a set of amendments that would diminish but not abolish gene patents. A frequent theme of submissions, however, and an argument employed by Ms Clarke, is that human genes are “natural phenomena” that are by no means akin to an invention and therefore not worthy of a patent.
Ms Clarke’s request for Labor to propose this amendment to the Act, and her commitment to propose it herself if the party does not, demonstrates an admirable intelligence and audacity and may be a reflection on the benefits of what has been given the rather trite title: “the new paradigm”.