The Myriad Gene Patent case in Australia and Good Queen Bess’ Toyboy – Six degrees of separation?

We have all heard the theory that it is possible to connect any two people in the world in only six steps.  A variant of this resulted from watching an old BBC serial about Elizabeth I in the week the High Court handed down its decision in the Myriad case.

1. Queen Elizabeth I’s “favourite” in the later part of her reign was Robert Devereaux, 2nd Earl of Essex. As a mark of her favour, Queen Elizabeth granted Essex the monopoly on importing sweet wines into the kingdom.  She also appointed him commander of her army to supress a rebellion in Ireland.

2. Essex infuriated the Queen by disobeying her instructions in relation to the conduct of the war in Ireland, and she retaliated by refusing to renew the monopoly (and depriving him of a major part of his income).

3. Having lost the Queen’s favour, in 1601 Essex raised a rebellion with the intention of replacing the Queen’s councillors with his own supporters. The rebellion was unsuccessful, and Essex was beheaded for treason.

4. Later the same year, the Queen issued a proclamation repealing all monopolies “injurious to the common good”. However conflicts over the grants of monopolies did not end, and in 1623, the parliament of Elizabeth’s successor, James I passed the Statute of Monopolies.  This statute prohibited all monopolies other than those granted for “new methods of manufacture” (which were permitted by  Section 6 of the Statute).

5. Section 18 of the Australian Patents Act states that an invention is patentable only if (among other requirements) it is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies.

6. The only question before the High Court of Australia in the Myriad litigation was whether the claimed invention (isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm indicative of susceptibility to breast cancer and ovarian cancer) was manner of manufacture within the meaning of section 6 of the Statute of Monopolies. The High Court held it was not, and that the claims relating to that invention were therefore invalid.


Annette Rubinstein, Former POF Attorney

BA(Hons) LLB(Hons)

Annette has worked in the Legal Policy and Research Department of the Victorian Attorney General’s Department and has practised as a barrister.