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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.
(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
nucleic acids were mere information.
There are two leading Australian court decisions relating to biotech patentable subject matter.
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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