High Court to Consider Whether Isolated Genetic Material is Patentable in Australia

On 13 February 2015, the High Court of Australia (High Court) heard and granted Yvonne D’Arcy’s application for special leave to appeal the Full Federal Court of Australia’s (Full Federal Court) decision in D’Arcy v Myriad Genetics Inc [2014] FCAFC 115.

The unanimous decision of the five-judge bench of the Full Federal Court was that Myriad Genetics Inc’s patent claims directed to particular isolated BRCA1 genes were patentable subject matter in Australia.

We previously reported the Full Federal Court’s decision in 2014 here. This decision was at odds with the U. S. Supreme Court’s decision in 2013 that similar patent claims were invalid, being claims to a ‘product of nature’ and, accordingly, not patentable subject matter.

The grant of special leave gives the High Court the opportunity to decide once and for all whether patent claims directed to isolated naturally occurring materials are proper subject matter for patent protection.