Last night (22 September) a Senate Committee found that a bill to ban the patenting of biological materials should not be passed.
The private member's bill, sponsored by senators Bill Heffernan, Nick Xenophon, Rachel Siewert and Helen Coonan, sought to ban the patenting of all biological materials, including genes, which are identical or substantially identical to those found in nature.
The committee found that the bill did not provide an effective solution to the problems articulated by the wider community in terms of access to healthcare.
It noted that, while well intentioned, the bill posed significant consequences to the healthcare, agriculture, food technology and livestock sectors, as well as to investment in drug research and development in Australia.
Dr Tania Obranovich, a patent partner at Davies Collison Cave and member of the Institute of Patent and Trade Mark Attorneys of Australia (IPTA), welcomed the Senate Committee's finding and said the bill's proposals did not correlate with the issues articulated by the public, especially in relation to regulating the abuse of monopolies.
"Banning the patenting of all biological material isn't going to change, in any way, access to method patents like diagnostics ... If we don't have patents available in Australia when the rest of the world does, there could be some very detrimental consequences," said Obranovich.
In their submissions to the Senate Inquiry, some pharmaceutical companies said if they could not patent in Australia, they would seek regulatory approval for their products and take them to the market overseas. Once they had recouped their investment overseas, the companies said they would then consider bringing it to Australia.
"This is really concerning," said Obranovich, "It's not that investment would dry up - the investment would just shift overseas. If there's no patentable protection available in Australia, but there continues to be in Europe and the US, development will be sent overseas and our researchers will go where the development is, where the money is, where the protection is."
Obranovich also said researches would be unlikely to continue with clinical trials in Australia if the bill was passed.
While the committee acknowledged there are ethical dimensions to patenting human genes and biological materials, it found that more consideration should be given to a general ethical exclusion to inventions - "the commercial exploitation of which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public".
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