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The Possibilities of a Regulatory Approach to Answer the Question: Should Genetic Inventions be Patentable? Chris Dent

The Possibilities of a Regulatory Approach to Answer the Question: Should Genetic Inventions be Patentable? Chris Dent

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Published by Brendan Gogarty

This article picks up on Di Nicol’s suggestion that the “role of law in regulating and facilitating … innovation must be adequate and appropriate” and argues that what is lacking now is, in fact, an adequate and appropriate understanding of how patent legislation operates as a regulatory instrument. The Australian Patents Act 1990 (Cth) (the “Patents Act”) has been selected for analysis of this issue.

This article picks up on Di Nicol’s suggestion that the “role of law in regulating and facilitating … innovation must be adequate and appropriate” and argues that what is lacking now is, in fact, an adequate and appropriate understanding of how patent legislation operates as a regulatory instrument. The Australian Patents Act 1990 (Cth) (the “Patents Act”) has been selected for analysis of this issue.

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Categories:Business/Law
Published by: Brendan Gogarty on Feb 07, 2013
Copyright:Attribution Non-commercial

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09/17/2013

 
Title:
ThePossibilitiesofaRegulatoryApproachtoAnswertheQuestion:ShouldGeneticInventionsbePatentable?
Author:
ChrisDent
EAPDate(approvedforprint):12/10/2012DOI:10.5778/JLIS.2012.22.Dent.1
Note to users:
Articles in the ‘Epubs ahead of print’ (EAP) section are peerreviewed accepted articles to be published in this journal. Please be awarethat although EAPs do not have all bibliographic details available yet, theycan be cited using the year of online publication and the Digital ObjectIdentifier (DOI) as follows: Author(s), ‘Article Title’, Journal (Year), DOI, EAP(pg #).The EAP page number will be retained in the bottom margin of the printedversion of this article when it is collated in a print issue. Collated printversions of the article will contain an additional volumetric page number.Both page citations will be relevant, but any EAP reference must continue to be preceded by the letters EAP.ISSN-0729-1485Copyright
©
2012 University of TasmaniaAll rights reserved. Subject to the law of copyright no part of this publicationmay be reproduced, stored in a retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise,without the permission of the owner of the copyright. All enquiries seekingpermission to reproduce any part of this publication should be addressed inthe first instance to:The Editor, Journal of Law, Information and Science, Private Bag 89, Hobart,Tasmania 7001, Australia.editor@jlisjournal.org 
http://www.jlisjournal.org/
 
EAP 1
The Possibilities of a Regulatory Approach to Answerthe Question: Should Genetic Inventions bePatentable?
C
HRIS
D
ENT
*
 
1 Introduction
This article picks up on Di Nicol’s suggestion that the “role of law inregulating and facilitating … innovation must be adequate and appropriate”
1
 and argues that what is lacking now is, in fact, an adequate and appropriateunderstanding of how patent legislation operates as a regulatory instrument.The Australian
Patents Act 1990
(Cth) (the “
Patents Act
”) has been selected foranalysis of this issue. In one sense, this makes the contribution parochial;however, the concerns at the heart of the patent system in this country aresubstantially similar to the concerns evident in the regimes in other countries— in part because the
Agreement on Trade-Related Aspects of Intellectual PropertyRights
2
(the “
TRIPS Agreement
”) binds most national systems and in part because the economic understanding that underpins the
TRIPS Agreement
isaccepted, almost as gospel, in the majority of developed countries. Thisexamination of the
Patents Act
 , therefore, can be seen as a case study that hasimplications for regimes in other countries.It may not be going too far to suggest that the plethora of reviews into theAustralian patent system over the past couple of decades is indicative of anincomplete understanding of the purposes, and limitations, of the
Patents Act
.
3
 

*
Senior Research Fellow, Intellectual Property Research Institute of Australia,Melbourne Law School.
1
D Nicol, “Implications of DNA Patenting: Reviewing the Evidence” (2011) 21
 Journal of Law, Information and Science
7, 36.
2
 
 Marrakesh Agreement Establishing the World Trade Organization
 , opened for signature15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C(“
Agreement on Trade Related Aspects of Intellectual Property Rights
”) (“
TRIPSAgreement
”).
3
 
The list of reviews include the Administrative Review Council, “AdministrativeReview of Patent Decisions” (Report No 43, Administrative Review Council,October 1998); Advisory Council on Intellectual Property, “Patentable SubjectMatter” (Final Report, December 2010) (the ACIP has completed 12 other reviewsin its short life and has two more currently under way); Australian Law ReformCommission,
Genes and Ingenuity: Gene Patenting and Human Health
 , Report No 99(2004); Intellectual Property and Competition Review Committee,
Review of Intellectual Property Legislation Under the Competition Principles Agreement
(2000);Community Affairs Reference Committee, Senate,
Gene Patents
(2010); and theongoing work of IP Australia into reforming the technical aspects of the system —including the work that gave rise to the
Intellectual Property Laws Amendment(Raising the Bar) Act 2012
(Cth).
 

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