Australasian Science: Australia's authority on science since 1938

Gene Jousting

By Simon Grose

To patent or not to patent? That is the question.

The internet’s culture of free access has changed the game for publishers trying to protect their intellectual property. From Australasian Science to News Limited they are placing content behind paywalls and asking people to pay at the gate.

As a director of News Limited, Lachlan Murdoch is at the forefront of efforts by publishers to get a fair return for the content they create. Father Rupert has led the charge.

So Lachlan may have harboured guilt about logical inconsistency when he accompanied his wife Sarah to Canberra last year for a media call. As Patron of the National Breast Cancer Foundation, Sarah was adding her celebrity status to a campaign to outlaw patents relating to human genes. Fees charged for diagnostic services by a company with patents over genes associated with breast cancer provoked her concern.

Shadow Health Minister Peter Dutton backed the campaign, promising to introduce legislation to ensure that patents are granted “for inventions, not discoveries”.

“Naturally occurring human genes are not invented in the laboratory, and as such should not be subject to a patent,” he said.

In November 2008 a Senate committee began an inquiry into gene patents. After a hold-up for the 2010 election, it issued its report in November.

It had to weigh the views of Murdoch and Dutton against the reality that gene patenting is a globally established practice that provides an incentive for research investment. Australian patents have been granted for almost 400 individual genes, while patent applications for methods of using gene sequences are now more common.

In a submission to the inquiry, IP Australia and the Department of Innovation, Industry and Science said that the national patent system is “technology-neutral”, and while discoveries are not patentable, court rulings have recognised that the distinction between discoveries and inventions “can be extremely fine”.

“If ingenuity has been applied to a discovery to produce a new and useful result then it is an invention and may be patentable,” the submission said.

Apart from the arcania of legal definition, cutting a fair deal between the entitlements of those who create knowledge and applications of that knowledge for the public good are exceedingly fraught. The Breast Cancer Foundation is an example of how difficult this dilemma can be – it seeks reimbursement of grants if the funded work reaps financial returns.

Dutton’s populist argument ignores such details, but winning popular appeal is his job. And he said his proposed legislation would be referred to a committee “to ensure that there were no unintended consequences”.

So there will be at least one more inquiry before some kind of compromise is achieved. No doubt both sides of politics will claim ownership of it, especially if Sarah likes it.

Simon Grose is a Director of Science Media (