Patenting Nucleic Acid Sequences: More Ambiguity from the High Court?

The High Court in D'Arcy v Myriad Genetics Inc (2015) 258 CLR 334; [2015] HCA 35 addressed patent claims under the Patents Act 1990 Cth to deoxyribonucleic acid (DNA) sequences set out in tables listing nucleotides as As, Ts, Gs and Cs finding they are unpatentable. This was a significant development given DNA sequences have been patentable for decades. This article reviews the High Court's judgments in D'Arcy v Myriad Genetics Inc highlighting the introduction of ambiguities to the current subject matter standards and providing a critique of the High Court majority's assessment of DNA sequence as information. The article concludes that the High Court majority has introduced an unhelpful conception of information as a standard for patentability. While this will limit claims to DNA and other nucleic acid sequences, the broader effect of the decision is uncertain because the High Court majority's conception of information could be applied to any matter (including all molecules) and eviscerate the patent system.