Intellectual Property LawWe act in the following intellectual property (IP) matters:
We also provide advice on matters such as:
PatentsPatents require the expertise of an expert patent lawyer. At Ludwig Lawyers, we do not act in any patent matters.
We do not support patents on life. The Myriad Genetics case in Australia and the United States - Isolated Human Genes Not PatentableAustralia's Myriad Genetics case
Cancer Voices Australia v Myriad Genetics Inc is a test case on whether human gene patents can be granted in Australia, specifically whether a patent can be granted over the BRCA1 gene. Watch Prof Peter Cashman explain the law and the court case before the hearing and before the judgment was handed down: “Patenting of Genes - Ownership of Crops and Cures by Multinationals”. The applicants lost the case at first instance. See Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65, Federal Court of Australia, Nicholas J, 15 February 2013. Nicholas J held that an isolated gene, in contrast to a gene in situ, was patentable. Ms Yvonne D'Arcy, the second applicant, appealed the case. The appeal was heard in August 2013 in the Full Federal Court in Sydney. Yvonne D'Arcy lost the appeal before the Full Federal Court of Australia: see D'Arcy v Myriad Genetics Inc [2014] FCAFC 115 (5 September 2014). The Full Federal Court decision is contrary to what the highest court of the United States had already decided on the same issue, namely, that isolated genes cannot be patented in the United States. See also the following news articles on the Full Federal Court of Australia judgment: "Australian federal court rules isolated genetic material can be patented - Decision is likened to ‘being allowed to patent oxygen’, as critics warn of serious repercussions for medical research", The Guardian, 5 September 2015, and "Calls for patent law reform after Federal Court judgment", ABC, 5 September 2014. Ms Yvonne D'Arcy sought leave to appeal to the High Court of Australia which was granted, and, finally, the High Court of Australia, on 7 October 2015, held that patent claims to isolated human DNA used in testing for breast cancer were not a ‘manner of manufacture’ and that the claims were therefore not patentable subject matters in Australia. See D'Arcy v Myriad Genetics Inc [2015] HCA 35 United States Myriad Genetics case First instance: Association for Molecular Pathology v Myriad Genetics, United States District Court for the Southern District of New York (held: genes not patentable). Second instance: Myriad Genetics v Association for Molecular Pathology, United States Court of Appeals for the Federal Circuit (held: isolated DNA can be patented). Third instance: Association for Molecular Pathology v Myriad Genetics, Federal Court, second hearing, 16 August 2012 (held: isolated DNA can be patented). On 30 November 2013, the Supreme Court agreed to hear the plaintiffs' appeal of the Federal Circuit' ruling. Oral arguments were heard before the Supreme Court on 15 April 2013. See the transcript here. Myriad lost in The Supreme Court (the highest court in the United States) which decided on [insert date] that isolated genes cannot be patented: see [insert judgement details] Plant Breeders RightsAt Ludwig Lawyers, we do not act for anyone seeking to have a plant breeders rights granted.
Plant varieties were developed in the public domain over thousands of years. With the privatisation of public seed banks, seeds and plant cultivars were transferred to private interests. We believe that plant varieties belong in the public domain and that the plant breeders rights legislation should be abolished. BiopiracyThe 'Green Revolution' - a misnomer if ever one existed - forced on India has had disastrous effects on farmers, agriculture and the environment. The same attempts are now made for another 'Green Revolution' in Africa.
Dr Vandana Shiva and her not for profit research organisation Navdanya have been fighting against these destructive forces for decades. They have had several important legal victories against Biopiracy. "Technologies of the green revolution not only made thousands of indigenous varieties of food crops extinct, they also destroyed soil fertility and created water scarcity. And within a few decades of their introduction, they failed to deliver... [with resulting] hunger. "A new technology - biotechnology or genetic engineering - is today being promoted as the technology of deliverance. However, genetic engineering is a laggard technology, limping far behind the advanced technologies of farming communities of yesteryears. It merely tries to recreate artificially and often irrationallly, usually with hazardous or ludicrous consequences, what nature and farmers have already most aptly created in partnership of over thousands of years. An example of such irrationality is Monsanto's attempt to replace the daily consumption of two tablespoons of cooked greens with kilos of its "golden rice" (genetically engineered to contain Vitamin A), to prevent Vitamin A deficiency. "Taking nature's and farmer's intellectual wealth, innovation and creativity for free and creating artificial crops mainly for profits is intellectcual piracy. Intellectual piracy is made possible through Intellectual Property Rights (IPRs) regiemes of patents and plant breeders' rights." Extract from "Biopiracy of Climate Resilient Crops", Navdanya, 2009, pages 5-6 Find out more about the importance of Seed Freedom and Seed Sovereignty at https://navdanya.org/site/living-seed/seed-freedom. |
Patents - Australia
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