Australian Government responds to recent inquiries into gene patentability: outright ban rejected
The Federal Government yesterday tabled its response to three recent inquiries into reform of Australia’s patent system—including the Senate Community Affairs Committee inquiry into gene patents, the Advisory Council on Intellectual Property review of patentable subject matter and an Australian Law Reform Commission report—and has rejected calls for an outright ban of the patenting of genes and other biological materials.
A technology neutral approach to patentability
The Government’s response, which is consistent with the outcomes of six previous Australian inquiries into the patent system, clearly supports the crucial role of the patent system in fostering investment in and development of medical research for the benefit of the Australian community. Importantly, the Government acknowledges the importance of ensuring fair and reasonable access to patented medical technologies, both in terms of community access to affordable healthcare and access for research purposes, this reflecting the outcomes which are sought by the wider community. Crucially, the Government stresses the importance that these outcomes be pursued in a technology neutral manner, thereby benefiting community access to all technologies.
The Government’s recommendations
The Government’s recommendations for achieving these outcomes are well placed and focus on ensuring the existence and application of patentability thresholds consistent with international standards while simultaneously working with the safeguards which are already present in the Patents Act 1990 to control how a patent right is exercised in order to prevent abusive monopolistic behaviour.
In terms of meeting these objectives, the Government has acknowledged the significance of the Raising the Bar Bill, which seeks to raise Australian patentability thresholds to meet current international standards. The Government also recommends that further legislative consideration be given to issues such as the introduction of an ethical exclusion to the patenting of technologies where such patenting may be out of step with community values. This approach is one which is both technology neutral and provides the flexibility to move with changing community standards.
Rejection of a ban on gene patents will restore confidence
Most significantly, the Government’s express rejection of an outright and arbitrary banning of the patenting of genes and other biological materials, is welcomed. This will now restore, both domestically and internationally, certainty and confidence in the operation of the biotechnology sector in Australia. In making this recommendation, the Government has acknowledged the importance of any changes to Australia’s patent laws being consistent with our international obligations. This recommendation should hopefully now bring an end to consideration of the private members’ bills which seek to ban the patenting of these materials in Australia.