D'Arcy v. Myriad Genetics Inc: Patenting Genes in Australia

Abstract

Australian patent law is currently at a crossroad. As it stands, the law lacks the tools and techniques to categorise patentable subject matter: at least in a way that does not appear to be arbitrary or capricious. The forthcoming High Court appeal in D'Arcy v Myriad Genetics Inc, which concerns the patenting of human genes, offers an important opportunity to fill this vacuum. One of the challenges for the High Court in doing so, will be to confront the limitations of the existing law; particularly the shortcomings of the decision of National Research Development Corporation v Commissioner of Patents. In order for Australian patent jurisprudence to move beyond its current malaise, it is important that the High Court reflect on what is meant by 'invention' in Australian law, and also on the criteria to be used when deciding whether something is patent-eligible.

JEL Classification: K00