With the forthcoming December 2013 Special Issue of JLM being dedicated to the topic of “regulating the use of human bodily material”, readers might be interested in two articles published in the October 2013 issue of AIPJ.
Ella O’Sullivan’s article analyses the patentability of human embryonic stem cells under s 18(2) of the Patents Act 1990 (Cth) in light of the decision of the Court of Justice of the European Union in Brüstle v Greenpeace eV. By adopting a broad approach to what is meant by a “human embryo”, O’Sullivan argues that the decision in Brüstle may be unduly preventing patent protection for beneficial biotechnological inventions. To avoid a similar use of s 18(2) in Australia, O’Sullivan supports a proposal to introduce a technology-neutral ethical exclusion to patentability, which would preclude commercial exploitation of patents that would be “wholly offensive to the ordinary reasonable and fully informed member of the Australian public”.
Belinda Huang’s article directly addresses the Commonwealth Parliament’s failure to introduce an ethical exclusion in the Raising the Bar reforms. Pointing to the decision to uphold the patentability of a cancer gene in Cancer Voices Australia v Myriad Genetics Inc  FCA 65, the author argues that the absence of something like an ethical exclusion prevents public interest considerations being appropriately taken into account in Australian patent decisions, and especially in relation to patents for biotechnological inventions. To redress legislative inaction, Huang proposes that the courts should interpret the “generally inconvenient” proviso in the definition of “manner of manufacture” as conferring a discretion to examine the ethical implications of biotechnology patents.