Australia

The patentability of living things: the latest in the BRCA gene saga

7 October 2014 by Rosalind English

D’Arcy v Myriad Genetics Inc [2014] FCAFC 115 (5 September 2014) – read judgment The recent ruling from the Full Federal Court of Australia allowing the breast cancer gene isolated in the laboratory to be patented contrasts sharply with the ruling by the US Supreme Court last year that a naturally occurring DNA segment is a “product of nature” and therefore not patent eligible merely because it has been isolated. The implications of this ruling for gene testing and patenting of biological products have been eloquently discussed elsewhere and I will not attempt to cover the same ground – see for example the excellent discussion posted by the Enhanced Genetic Services Project. All I want to point up in this post – apart from the obvious need for intellectual property law to encompass the development of science and technology – is the Australian court’s focus on how easily misled one may be by semantics in this sort of dispute. This ruling upholds an earlier decision that gene patenting is permissible under Australian law, declaring that “the boundaries of the conception of patentability are not dictated only by deductive logic from the linguistic premises formulated in the scientific knowledge of a particular age”. The concept of patentability has been broadening since the first quarter of the 17th century, and there is no reason why it should reach an artificial wall erected by unfathomable and unexplained “laws of nature” (a premise much relied upon by the US Supreme Court). I posted last year on the decision of the US Supreme Court in Association for Molecular Pathology v Myriad Genetics Inc. It will be remembered that that Court held that a sequence of DNA mimicking the BRCA breast cancer mutation could not be patented because DNA’s information sequences and  all the other processes that allow the information to manufacture bodily tissues occur naturally within human cells. 
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Australian judge lays down gauntlet for the angels of human rights

25 September 2013 by Rosalind English

J.D. Heydon: Are Bills of Rights necessary in common law systems?   – read lecture

Former Australian High Court Justice Heydon’s thought-provoking speech questioning the efficacy and indeed the very merits of the Human Rights Act deserves reading in full, but the following summary highlights its main features and should encourage readers to immerse themselves in the lecture.

Proponents of human rights instruments urge their necessity on society because they gesture toward a morality more capacious than the morality of our tribe, or association, or nationality. The forum of human rights is one in which our allegiances are not to persons or to wished-for outcomes but to abstract norms that are indifferent to those outcomes. That is why the Human Rights Act has around it what Heydon calls an “aura of virtue” that would make its repeal extremely difficult from a political point of view, even though it is legally and practically possible.
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IVF Doctor not liable for failing to warn parents of genetic disorder in child – Australian Supreme Court

21 May 2013 by Rosalind English

Waller v James  [2013] NSWSC 497 (6 May 2013) – read judgment

So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate.

Since 1999 (MacFarlane v Tayside Health Board) such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust).  Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform? This Australian case gives some indication of the way the courts may approach such questions.

Background facts

Keeden Waller was conceived by IVF using the Wallers’ own gametes. There was a fifty percent chance that he would inherit from his father a blood disorder called antithrombin deficiency (ATD), a condition that affects the body’s normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves.
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The Patentability of Human Genes: more developments

20 March 2013 by Rosalind English

Cancer Voices Australia v Myriad Inc 13 February 2013 – read judgment

Another battle in the war against gene patenting has been lost, this time in Australia.

The US litigation is still ongoing, with the US Court of Appeals for the Federal Circuit upholding Myriad’s patents on DNA sequenced in the laboratory: see my post on that judgment. On 30 November 2012, the US Supreme Court announced that it would hear an appeal in the Myriad case. The US law in relation to the patentability is therefore not likely to be settled until the Supreme Court reaches it own decision on the issue.

This Federal Court ruling in Australia has now endorsed the government’s rejection of calls for an outright ban on the patenting of genes  by ruling that  isolated nucleic acid (including isolated DNA and RNA) is patentable.  
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How most Australians do human rights without a Human Rights Act

9 July 2012 by David Hart QC

A sparkling, erudite and funny lecture last Thursday 5 July from the Chief Justice of Australia, exploring how the Australian system with a constitution, but without a Bill of Rights/Human Rights Act, seeks to deliver human rights protection – thanks to the Administrative Law Bar Association and the Angl0-Australasian Law Society. I shall try to summarise the differences, though, rather like the pre-HRA UK position, Australian human rights protection is a subtle one and a difficult one to explain in a short post. Particularly for a Pom. So I am in part throwing down a challenge to our Australian readers (up until this point, at least, quite a few) to comment on what follows.

The constitutional framework  is all important. There are three major differences between this and the UK “constitution”. The first is the presence of a written constitution over 100 years old, and amendable only by referendum. The second is a federal system laid down by that constitution. Out of that arrangement comes a separation of powers between judiciary, legislature, and executive, and also between the Commonwealth (i.e, the federation) and each State, taken against the background of general common law principles drawn from the States’ shared colonial history. And the third is the lack of any substantive human rights instrument applicable to Australia as a whole.

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Three perspectives on the Bill of Rights

28 April 2010 by Adam Wagner

Three interesting press articles on proposals for a Bill of Rights:

The Northern Irish perspective – Monica McWilliams, chief commissioner for Human Rights in Northern Ireland writes in The Guardian: “The Human Rights Act is central to the constitutional DNA of the UK. It underpins the devolution settlements while simultaneously elucidating the common values of the constituent nations. It also provides a necessary platform from which the sense of autonomy that devolution brings can be further built upon.” (see our post on the subject)

The NGO perspective: Qudsi Rasheed, Legal Officer for JUSTICE, the human rights NGO, writes in The Guardian: “The Conservative party’s approach to this issue has been cloak and dagger. The commission of lawyers set up by David Cameron to consider the bill of rights has been extremely secretive and none of its work has been published. Short of vague and often contradictory statements and political rhetoric by various members of the party, there has been very little in the way of concrete proposals and suggestions.”

The Australian perspective: The Australian Newspaper editorial on why the Australian Prime Minister, Kevin Rudd, was right to reject proposals for an Australian Bill of Rights: “The Rudd government’s decision last week to reject the idea of codifying rights is a recognition that Australia’s robust constitution, its strong parliamentary tradition of lawmaking, its independent judiciary, and its intelligent civic culture are the best protections for citizens. Far from protecting minority rights, statutory codification risked pitting the judiciary against the parliament by, in effect, becoming a third house of parliament.“

Outcome of Carson v The UK is £60m pensions bill for Australians

6 April 2010 by Adam Wagner

We posted last week on Carson and Others v The United Kingdom (read judgment), in which the European Court of Human Rights rejected a claim that UK pensioners living abroad should have their pensions index-linked (i.e., that they be raised in line with inflation).

It turns out that it is not just the UK, or indeed Europe, being affected by the long reach of the ECtHR. Alison Steed in The Daily Telegraph reports that the Australian Government are footing the bill for 170,000 ex-pat British pensioners living there. They have said in response to the judgment:

“The Australian government believes this policy is discriminatory. We have been actively lobbying the UK government on this issue… This policy continues to place an increasing burden on all Australian taxpayers, as the Australian government picks up the tab for around 170,000 UK pensioners who also receive means-tested Australian pensions – estimated at about A$100 million (£60 million) per year in additional social security payments.”

Australia ended its social security agreement with the UK in 2001 in light of this issue, which affects around 500,000 ex-pat UK pensioners living worldwide.

Read more:

• 28 March 2010 post
• The ECtHR judgment
• Our case summary of Carson; Reynolds v Secretary of State for Work and Pensions (May 2005 – House of Lords, 2003 – Court of Appeal)
• Media coverage of the Carson judgment in The Guardian and on the BBC website