The debate as to whether companies should be allowed to patent genes escalated this month with an Australian Senate committee holding public hearings on the topic. Gene patenting gives intellectual property rights over isolated gene sequences and their uses, if the chemical structure of the isolated sequence was not previously known. Input from scientists, lawyers and community groups around the country is shaping the dialogue on the pros and cons of gene patenting.

Those in favour say the identification of genes creates a new and practical use and, therefore, warrants legal protection. Those against the patenting argue that patents are designed to be a reward for invention and should not apply to the practice of simply identifying or isolating something that has always existed, particularly in the human body.

The Senate inquiry is to consider the impact of the granting of patents in Australia over human and microbial genes and non-coding sequences, proteins, and their derivatives, including those materials in an isolated form, with particular reference to the impact of patent monopolies on the provision and costs of healthcare, the provision of training and accreditation for healthcare professionals, the progress in medical research, and the health and wellbeing of the Australian people. It will also identify measures that would ameliorate any adverse impacts arising from the granting of patents over such materials, including whether the Patents Act 1990 should be amended, in light of the any matters identified by the inquiry; and whether the Patents Act 1990 should be amended so as to expressly prohibit the grant of patent monopolies over such materials.

One voice in the public debate is that of Francis Gurry, Assistant Director General and the Legal Counsel of the World Intellectual Property Organization, who states in relation to the effect of patenting decision on creating a viable biotech industry `... that's one consideration you always have to have, is what are you doing to your home industry if you are going to exclude patent protection? And the other is, how are you going to relate to your major trading partners? Because if you're not protecting things that they regard to be extremely important, then they're obviously going to regard you as a less hospitable environment in which to invest.'

Another key point in the argument is over whether genes can be termed inventions. According to Luigi Palombi, Intellectual Property lawyer and academic at ANU, `Strictly speaking, the patent monopoly should only be granted in respect of something that is an invention, and that's one of the things that this inquiry's going to be looking at - are genes in an isolated form - and by that I mean genes that have been removed from the human body or removed from their natural environments - are these inventions? And the scientific community seems to be pretty clear that they're not, and I'm certainly of the view, and I have been for many years as a patent lawyer, of the view that they are not inventions and cannot be inventions, because essentially they are identical or substantially identical to what exists in nature.'

On August 5 2009, Professor Ian Olver of the Cancer Council Australia addressed the Senate Inquiry advocating for patent law reform. Sally Crossing of the Cancer Voices NSW backed the view that current laws are out-dated and restricting the progress of cancer research. She added that `Cancer Voices NSW, in its role of representing the interests of people affected by cancer strongly supports an amendment of the Patents Act, to prohibit the granting of patents over such natural materials as human genes. Apart from the ethical aspects, the understanding of the role of genes in cancer is an exciting new field with enormous potential for us all. We do not want to see it compromised by patent monopolies over human genes, limiting badly needed opportunities in diagnosis, prognosis and treatment of cancer (and many other diseases).'

This question has been simmering for several decades and is now being brought to the surface of a boiling pot `should private, profit-driven companies be allowed to gain exclusive control over knowledge about our genes.' The answer will have enormous implications for the scientific community, pharmaceutical research companies and patients alike.