Scintilla – a flash, a spark, an iota. Shorthand for creativity and an indicator of inventiveness under Australian law.

Tuesday, February 17, 2015

High Court to hear appeal from D'Arcy v Myriad Genetics Inc

By Tony Shaw, Associate

We reported here and in our recent Focus article that the Full Federal Court in D'Arcy v Myriad Genetics Inc (D'Arcy) handed down a unanimous judgment confirming the first instance decision of Justice Nicholas in Cancer Voices Australia v Myriad Genetics Inc (Cancer Voices) that 'isolated nucleic acids' (genetic materials in their isolated form) are patentable in Australia.

The judgments in Cancer Voices and D'Arcy have been consistent in the application of Australian patent law in deciding that 'isolated nucleic acids' are patentable subject matter. In the US, the Supreme Court has come to a different conclusion finding that isolation per se is not enough for patent eligibility. In Europe, Directive 98/44/EC on the legal protection of biotechnological inventions provides that isolated biological material is patentable even if it has occurred previously in nature.

On 13 February 2015, the High Court of Australia granted Ms D'Arcy special leave to appeal the Full Court's decision. According to a press release by Ms D'Arcy's lawyers the High Court hearing will take place in April 2015.

Keep an eye on Scintilla and the Allens website for updates on the appeal and our reporting of the High Court's decision.

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