PTC FORUM: Online Journal of the Patent, Trademark and Copyright Research Foundation

AUSTRALIA - INTERNATIONAL / PATENTS / BIOTECHNOLOGY

Biotechnology and the Patentability of Genetic Material

Joseph Wayne Smith

Intellectual Property Forum, Issue 44

This article comprises a "legal and philosophical defence of intellectual property rights", based largely on the experience of the Australian statute and case law, with particular reference to the moral and philosophical criticisms of the patenting of living organisms, especially genetically modified organisms, as well as genetically modified material derived from human and other organisms. The author rejects the standard criticisms. He sets o ut the main terms of Australian patent law, particularly the provision that "human beings, and the biological processes for their generation, are not patentable inventions". At the same time, microorganisms are regarded as patentable, provided the usual patent law conditions are met; and higher life-forms are not to be treated differently from lower life-forms. The author differentiates the patenting of the human body from the genes or cells forming part of it; and he casts doubt on the objection that genetic engineering is more in the nature of "discovery" (making it unpatentable) than of "invention". (According to the High Court of Australia, the distinction between the two is "not precise".) He rejects the crisitism based on obviousness; and he emphasizes that the ownership of the genetic material of animals and plants is already legally recognized. He goes on to discuss the moral, metaphysical and philosophical objections which, as he says, are in two broad, but often confused, categories: a general opposition to genetic manipulation of higher animal forms at all and a specific objection to applying the patent system to such developments. He refers to various "horror scenarios" and to the views of the Autralian Conservation Association; but he cannot accept that the only way to prevent the patenting of humans is to prevent the patenting of all living things. Nor can he accept the argument that gene patenting violates a "collective privacy right". But he does accept that the protection of genetic rights of indigenous communities is needed both at the national and at the international level. This protection need not be at the expense of intellectual property rights which, as the author concludes, "are important both for the nurturing of technical inventiveness and to encourage an efficient use of resources". [20080]