Michelle Rowland (Greenway, Australian Labor Party) Share this | Hansard source

I rise in support of the motion. I thank the member for Fremantle for bringing this important issue to the attention of the House. This motion calls for an amendment to the Patents Act 1990 to expressly prohibit the granting of patents over ‘biological materials which are identical or substantially identical to what exists in nature’, such as gene sequences. I believe this makes sense legally, and from my understanding of the scientific commentary on this issue it also appears to me to make sense scientifically. It also makes sense to me as a matter of good public policy.

Currently, sections 18(2) and 18(3) of the Patents Act state:

(2)

Human beings, and the biological processes for their generation, are not patentable inventions.

…            …            …

(3)

For the purposes of an innovation patent, plants and animals, and the biological processes for the generation of plants and animals, are not patentable inventions.This is qualified by section 18(4), which states that this definition:

… does not apply if the invention is a microbiological process or a product of such a process.

It may appear as though the practice of issuing gene patents is justified because gene sequences are subjected to a microbiological process. The process of isolating the gene, removing it from the human body, removing the extraneous materials and inserting it into another cell constitutes an ‘invention’.

However, in reality there is no difference between an isolated cell and a cell that occurs naturally in the human body. This is a view supported by scientists who worked on the genome project. For instance, Nobel Prize-winning biologist Sir John Sulston has said, ‘The idea that genes can be isolated from the human body is simply absurd, because the essence of a gene is the information that it contains.’ Sir Sulston is essentially saying that nothing new is being created—no invention is taking place. And, if no invention is taking place, it makes it problematic to argue that a patent should be granted. This is a view supported by Cancer Council Australia, which recently said:

… human genetic material is not an invention and should not be patented.

Personally, I think it is important that the Cancer Council supports the prohibition of granting patents over genes.

In my first speech to this House, I gave a special commitment to support cancer research. I am concerned by reports that gene patents have the potential to hinder cancer research and medical research more broadly. Cancer researchers and support organisations across the country share these concerns and are opposed to the granting of patents over human genes. This includes the founder of the cervical cancer vaccine, Professor Ian Frazer; Breast Cancer Network Australia; the Peter MacCallum Cancer Centre; the Breast Cancer Action Group NSW; and Cancer Voices NSW.

Professor Ian Olver, from the Cancer Council, has warned that gene patents could curtail the development of cancer treatments. He has stated:

If you can patent a gene, a company could monopolise it for 20 years and that would preclude anyone else from doing research and that would slow up any discoveries of new treatments …

I find this perplexing, considering that approximately 20 per cent of human genes are patented in Australia.

I also note the disturbing instance to which this motion makes reference, as pointed out by the member for Fremantle—the BRCA 1 and BRCA 2 tests. These tests are used to determine whether women have a high risk of developing breast and ovarian cancer. The demand that public hospitals cease performing the tests on the ground of patent infringement would have made the BRCA 1 and BRCA 2 tests out of reach for many women across Australia. As members of this House we have an important responsibility to help, not hinder, cancer research. That is why I am speaking in support of this motion. It makes sense to me to prohibit the granting of patents over human genes if such perverse consequences would be the result.

In light of all these things, it appears to me that there is a statutory solution to the legitimate concerns noted by the member for Fremantle in this motion. It would be consistent with the legislative intent of the Patents Act to enact amending legislation which clarifies that gene patents cannot be the subject of a patent grant under law.

I note that there is an ongoing inquiry into gene patents by the Senate Community Affairs References Committee, which is considering this question. I will be closely examining the committee’s report, which is due to be released on the last parliamentary sitting day of this year. I understand that, for a variety of reasons, this committee was originally scheduled to report on the last day of the 2009 sittings. I am particularly interested to see whether the committee concludes that there exist valid grounds against legislative amendment.

I have been made aware of counterarguments to the need for legislative change, including the argument that researchers may be unwilling to undertake research for fear of infringing a patent. I am yet to be compelled by those assertions. As it stands, and in light of the reputable support for the sentiments expressed therein, I am very pleased to support the motion by the member for Fremantle.

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