To date, a single judge at first instance and five judges of the Appeal Court have unanimously deemed that claims directed to isolated BRCA1 and BRCA2 genes are patentable. Essentially for the High Court to overturn the unanimous finding of the previous judges in the lower Courts, it would need to establish that those judges made an error in applying the law. Whether the High Court will be persuaded by US jurisprudence on the gene patenting issue and/or issues of morality and social policy remains to be seen. Nevertheless, it is worth pointing out that Australia and the United States have taken very different approaches to applying the ‘test’ for patentable subject matter and the leading and still relevant case for patentable subject matter in Australia (the NRDC case)1 was decided by the High Court.

A High Court decision on this very important and topical issue of gene patents will no doubt finally put the gene patenting issue to rest in Australia. We will keep you posted.

1. National Research Development Corporation v Commissioner of Patents [1959] HCA 67