The Australian Senate’s Standing Committee on Constitutional and Legal Affairs, by majority, has recommended against adopting legislation that would ban the patenting of genes and other biological materials substantially identical to those existing in nature. While recognising that the Bill may have been “well intentioned”, the Committee concluded that it was not an effective solution to the problems that may be caused by patents over human genes and biological materials. Furthermore, the Committee considered the provisions “could have a large number of unintended consequences across the entire patent system with indeterminate impacts on a range of industries and sectors”.

The Senate Committee’s report is the latest in a series of deliberations on gene patents.  The series began with the 2004 report Genes and Ingenuity by the Australian Law Reform Commission, and was followed by the November 2010 report Gene Patents by the Senate Community Affairs References Committee’s and the December 2010 report Patentable Subject Matter by the Advisory Council on Intellectual Property (ACIP). Each report has come to essentially the same conclusion – there should be no specific exclusion of genes from patentability.

The Senate Committee expressly endorsed a number of ACIP’s 2010 recommendations – to codify the principles of inherent patentability, and to introduce a general exclusion to deal with ethical concerns. The codification would state that subject matter is inherently patentable if it is “an artificially created state of affairs in the field of economic endeavour”. The ethical exclusion would preclude the patenting of subject matter “the commercial exploitation of which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public”.