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Should Genetic Material Be Excluded from Patentability?


Memorandum to Cabinet Policy Committee: Report Back with Recommendations and Options for Addressing Genetic Material Patents

Hon Annette King, Minister of Health and Hon Judith Tizard, Associate Minister of Commerce
[ Last Updated 25 October 2005 ]


31. At present genetic material is patentable in New Zealand if it is "isolated and purified" and it meets the other criteria of patentability.

32. There would be two ways of excluding genetic material from patentability. The first would be to add an exclusion to the Patents Act explicitly excluding genetic material from patentability. As noted earlier in our paper, this option is likely to be inconsistent with New Zealand's TRIPS obligations.

33. The second would be to reclassify genetic material as a discovery rather than an invention. Some countries, such as Argentina,6 Brazil and the Andean Community countries, exclude "substances pre-existing in nature" from patentability even if purified and isolated, on the basis that "an isolated or cloned gene sequence is essentially the same as that found in nature, and therefore is not an invention."7

[material withheld under s6(a) of the Official Information Act 1982, as the making available of this information could prejudice the international relations of the government of New Zealand].

Comment

34. While there are some compelling ethical arguments that raise questions about the patentability of genetic material we do not recommend an exclusion of genetic material from patentability because:

  • By the time the exclusion would be added to the Act, a large number of genetic material patents will already have been granted;
  • There are broader issues with patenting (e.g. the breadth) not solely related to the patenting of genetic material per se;
  • In light of the rapid advancements in bioscience it is difficult to define "genetic material". Concerns are also starting to be raised about broad patents on proteins and stem cells.
  • Much of the international debate does not support an exclusion
  • The uncertainty regarding the scope and effect of New Zealand's TRIPS obligations
  • The possible effects on New Zealand's biotechnology sector of excluding genetic material from patent protection.

6 Article 6(g) of Argentinean Patent law.

7Keay, D., "Patenting DNA and Amino Acid Sequences - An Australian Perspective" (1999) 7 Health Law Journal 69, 74-75.


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