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patent law

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Malcolm Lyons, Patent Attorney

Patenting biotech in Australia — an update Obtaining a patent for a biotech invention is crucial to its further development and eventual commercialisation.

W

(NRDC), which related to a method of removing weeds from a crop using a selective herbicide. In this case, the High Court ruled that to meet

hether it’s a new drug, insecticide

Australia’s non-prescriptive requirements for

or diagnostic, the developer needs to know they will

patentable subject matter (“manner of manufacture”),

have exclusive ownership of the invention and enjoy

an invention must relate to an artificially created state

a return on their usually significant investment

of affairs that is of economic significance.

when they take the invention to the market. So what does Australian law say about what can and can’t be patented in the biotech space?

The second is D’Arcy v Myriad Genetics Inc (2015) HCA 35 in which the High Court revoked Myriad’s patent claims for nucleic acids that were markers for breast cancer on the basis that the

The law

nucleic acids were mere information.

There are two leading Australian court decisions relating to biotech patentable subject matter.

Nucleic acids

The first (relevant to all technology areas

As a result of the Myriad decision, naturally

including biotech) is the often-cited decision in

occurring nucleic acids and nucleic acids

National Research Development Corporation v

substantially the same as naturally occurring

Commissioner of Patents (1959) 102 CLR 252

nucleic acids are no longer patentable.

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