In September 2014, a five-judge bench of the Full Federal Court (Allsop CJ, Dowsett, Kenny, Bennett and Middleton JJ) unanimously confirmed that isolated, naturally occurring DNA and RNA sequences are patentable subject matter under Australian law. This was in contrast to the recent decision of the US Supreme Court on the same subject. We've previously blogged on the Full Court's decision here.
At the special leave hearing before French CJ and Bell J, Ms D'Arcy's Counsel submitted that the Full Court "erred in holding that there is no exception to patentability from something that is not relevantly different from what occurs in nature", and that the "Full Court's focus on chemical, structural and functional differences ... really overlooked the crucial similarity between the claim and the gene as it appears in nature". In contrast, Myriad's Counsel submitted that although there is a relationship to it, "what you have in the claim is something quite different to the cell". He also submitted that this case "is not about the ownership of a person's genes. It relates only to the patentability of a chemical compound, isolated nucleic acid. There is no element ... in this patent that takes it outside the context of NRDC".
In granting special leave, French CJ indicated that the hearing is likely to take place in the April 2015 sittings of the High Court. The hearing is expected to take one to two days of court time.
At the beginning of the special leave hearing, Ms D'Arcy's Counsel said of the issues before the Court: "it is hard to imagine a more important question in patent law". There are many in the community who would agree.