Cancer Group Loses Federal Court Bid Against Human Gene Patent

Cancer Voices Australia brought the case as it believed Myriad Genetics Inc, which owns the patent on the genes BRCA1 and BRCA2 linked to breast and ovarian cancer had an unfair monopoly on a naturally occurring gene.

It’s the first time the validity of genetic patents has been tested in an Australian court.

Cancer Voices sought to void the genetic patenting on the basis they were natural "discoveries".

Justice John Nicholas handed down his judgment this morning and explained the two genes, isolated from their natural cells in which they were found, constituted a "manner of manufacture" and could therefore be patented.

"The issue that arises in this case is of considerable importance," he said.

"It relates to the patent-ability of genes, or gene sequences, and the practice of gene patenting."

The company, which exclusively licenses its patent to Australian company Genetic Technologies Limited, strictly enforces its patent on the genes which are used to identify breast and ovarian cancer risk in patients.

In the US it requires all diagnostic testing to be conducted in its own laboratories.

Brisbane breast cancer survivor Yvonne D’Arcy was joined the suit with Cancer Voices Australia and was in tears after the decision in Sydney this morning.

Ms D'Arcy said she believed the judgment would lead to a restriction on research.

“I’m very disappointed, this had huge implications for research and medical technology in the future,” she said.

Speaking outside court, lawyer for Cancer Voices Australia Rebecca Gilsenan said the cancer group was very disappointed with the outcome and would consider appealing.

"One of the reasons that we agreed to bring this case was because of a concern about access to research, development of treatments and cures for genetically transmitted diseases,'' Ms Gilsenan said.

"That is a concern.''

Ms Gilsenan said she believed the loss of the case would have broader implications.

"It's a very significant issue,'' she said, adding that the suit had the strong support of medical researchers.

"I think the judge has distinguished between genetic material within the body and genetic material when it's been isolated from the body, but we need to go away and read the full judgment.''

Judge Nicholas ordered the applicants to pay the costs of the technology companies.

by Rick Morton, The Australian
February 15th, 2013