Christopher Back (WA, Liberal Party) Share this | Hansard source

I rise to speak on this matter as my colleague Senator Heffernan has—and I would never deal with his laboratory in such a desultory way, I can assure him! I think it goes to an absolutely critically important point, and that is that naturally occurring biological features or phenomena, such as genes or anything of that nature, should not be patentable. They are not an invention; they are a discovery, and I think it is absolutely critical that we go back to basics in this particular regard.

People will say, 'Well, where is the incentive for medical research?' We know that it is horrifically expensive, we know it is time consuming and we know that the proportion of chemicals tested that ever actually come to fruition is very low. But I want to make one point particularly strongly, in support of the comments made by the previous speaker, and that is that in the inventive side there is plenty of scope. I say again that the isolation of a gene, a gene sequence, chromosomes or whatever of themselves should not be patentable, because they are merely the discovery of a naturally occurring phenomenon. But the difference arises here: if a research organisation, a company, a group of researchers, a university or whoever were to modify that gene sequence, were to add value to it, were to establish a test to which those genes could be subjected to establish whether or not a member of a family, a person, an animal, a plant or whatever may have genes that are defective, of course that does constitute invention. It constitutes adding of value. It constitutes something upon which protection should be afforded to the research organisation or company.

Going further, if that group were to develop a vaccine that would allow for the control or even the prevention of that disease, it is patently obvious that it should be patentable, but not the original gene sequence itself. If that company, university, group or individual were to go to the expense of developing pharmaceuticals for the purpose of treating a disease that may arise as a result of those gene sequences, again you can see the logic of that. Surely that is where we as lawmakers should be directing our efforts here in Australia. Also, we should be encouraging those overseas, as indeed we are seeing in the United States and Japan and other jurisdictions, where they have come to realise that patents were handed out far too easily for what were actually discoveries of natural phenomena.

I do not want to speak for much longer on this, except to reflect on how far we have now come from the early days of medical research, where there was tremendous sharing of information. One can go back to Pierre and Marie Curie, when they first looked at and came to discover microscopic organisms. They were, of course, the subject of derision amongst the scientific community. But imagine if in those days they had gone and put a patent on the discovery of bacteria. Where would we be? Think of Fleming and his co-workers and the discovery of penicillin. The only reason it was discovered was that an agar plate was left out over the weekend. When Monday morning came along there was this unusual looking growth on it. They said, 'What is it? Let's throw it out. No, let's not throw it out; let's examine it.' The end result of that, of course, was the discovery of the antibiotic penicillin because someone discovered a bare area within all of the moss that was growing. That bare area was the substrate of that antibiotic. Let us imagine for a moment that, instead of sharing that with the world's scientific and medical community, Fleming and his co-workers had said, 'The best thing we can do here is put a patent on this and make sure that nobody else gets access to it.' If we go to polio and its vaccines, we are now so close to eradicating that in this world, including through the oral vaccine—the so-called Sabin vaccine.

My concern is for protecting the goodwill of the past that had such a profound effect on human health and in getting on top of so many of those infectious diseases that killed so many people in the world. I remind people again that the influenza epidemic of 1918-19 killed more people than died during the course of the First World War from military related activity. So we must surely protect that and ensure that we do not move away from that international goodwill that has always existed, that international goodwill that has allowed the sharing of information around the world to allow scientific peers in other places of the world to replicate and validate the work done by other scientists for the good of humanity, whether in human disease, animal disease, plant disease or whatever. We are facing a crisis. The last thing we need is a sense of protectionism.

But, at the same time, I recognise, as everybody must, that the cost of research is horrifically expensive. The proportion of pharmaceuticals that ever get to the market and yield a return for their developers is very small. Whilst we must accept the commercial reality, we must continue to encourage research and researchers. We should not ever get to the stage where naturally occurring phenomena—genes, gene sequences, chromosomes et cetera—are the subject of a patent on behalf of any person because they or someone associated with them happened to discover it. I seek leave to continue my remarks later.

Leave granted; debate adjourned.