It is a rare day that we, intellectual property aficionados, celebrate the end of a patent. But today, the 11th of August 2015, is an auspicious day, as many of the infamous BRCA patents expire. These patents have been the subject of much controversy worldwide, with Court challenges in the US, Europe and Australia. The patents that are due to expire include Australian patent AU686004 that is the subject of D’Arcy v. Myriad Genetics Inc & Anor, as well as a number of Myriad’s European Patents (EP0699754, EP0705902 and EP0705903). In some ways this expiry will have little effect in the Australian context; as we explain in our Occasional Paper at 115 the BRCA patents have been gifted ‘to the women in Australia and New Zealand’ by Genetic Technologies Ltd, the exclusive licensee of the patents in Australia and New Zealand. However the Australian High Court case challenges a broader principle. The question posed there is whether isolated genes that resemble those in nature are manners of manufacture for the purposes of s 18(1)(a) of the Patents Act 1990.
Whilst we eagerly await the decision of that court, Europeans and Australians need harbour no more concern that these particular patents will stifle innovation or reduce access to diagnostic tests. Beyond this, the question of what should constitute patentable subject matter will continue to be debated. Hopefully, we can learn lessons for the BRCA saga that will continue to guide patent policy in the future. (Posted by Dianne Nicol, John Liddicoat and Tess Whitton).