Most Read Contributor in New Zealand, September 2016
In a landmark judgment, Australia's highest court has
declared that certain claims in a patent filed by a US company for
a genetic product are not patentable inventions.
The decision is of great significance to the biotechnology
industry and may have wider implications.
Myriad Genetics lodged a patent application for an isolated
nucleic acid (DNA) coding for a particular
(BRCA1) protein with specific variations from the norm
that indicate susceptibility to breast cancer and ovarian cancer.
The claims disallowed were product claims for the particular
isolated nucleic acid. The decision did not involve considerations
of "morality" but was based on the long-standing
core question of whether the claims were a "manner of
Up till now the Australian Patent Office, its New Zealand
equivalent, and the European Union have accepted the patentability
of isolated nucleic acid sequences. The "invention" is
said to lie in the fact of isolating the particular gene from the
rest of the human DNA.
Such was also the case in the US – until 2013 when the
Supreme Court forced a change in regulatory practice through its
ruling in a case also involving Myriad Genetics.
Moreover, the Australian High Court has also recast the 1959
NRDC decision, which has been the benchmark for deciding what may
be patentable and has been cited in numerous Australian and New
Zealand cases. The Court has said, for instance, that amongst the
things of primary importance to consider will be whether an
invention as claimed "could give rise to a large new field of
monopoly protection with potentially negative effects on
The question now is not when but how soon, and with what effect,
the precedent created by the Australian judgment will be considered
in New Zealand and whether the New Zealand Courts will adopt what
is, arguably, a revamped approach to a fundamental aspect of
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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This article enunciates the recent, much awaited, and landmark judgment delivered on September 16, 2016 by Hon'ble Delhi High Court throwing light on the important provisions of the Copyright Act, 1962.
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.
The Policy stresses on the need for a holistic approach to be taken on legal, administrative, institutional and enforcement issues related to IP.
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