Is there still a place for gene patents in Australia? Implications of recent United States and European case law

This article considers the ramifications of recent United States and European litigation relating to patents claiming rights to genes associated with hereditary forms of breast cancer (the so-called BRCA genes) for recently commenced Australian litigation relating to the same subject matter. The article is contextualised with brief summaries of the relevant patent law, the science of genetics, the history of the BRCA genes and an overview of the activities of the patent holder. The analysis of first instance and appeal decision on the validity of the United States BRCA patents shows the final outcome is still highly uncertain in that jurisdiction, while the European litigation provides little assistance in predicting the outcome of the Australian action. This article concludes that the outcome of the Australian litigation is an issue that cannot be determined with any certainty due to the lack of specific, relevant precedents both in Australia and in other jurisdictions.