Cancer group loses landmark case against gene patent

A CANCER group which fought against the patenting of the BRCA1 gene has lost its landmark case in the Federal Court but may appeal the decision.

Patient advocacy group Cancer Voices Australia and Brisbane breast cancer survivor Yvonne D’Arcy had challenged the right of two biotechnology companies to hold a patent over BRCA1 gene mutations, which confer an increased risk of breast and ovarian cancer.

In a judgment handed down in Sydney today, Justice John Nicholas found in favour of Myriad Genetics Inc, the owner of the patent, and Melbourne-based Genetic Technologies Ltd, which holds the exclusive licence to conduct the tests in Australia.

Justice Nicholas ordered Cancer Voices Australia and Ms D'Arcy to pay costs.

The case hinged on whether a genetic mutation could be considered an invention within the meaning of the Patents Act.

Lawyers for Ms D'Arcy and the consumer group argued the patent was invalid because patents protected inventions and not discoveries.

Myriad argued the case did not involve a patent for a gene but for an "artificial construct".
It is the first time an Australian court has considered whether isolated human genes are patentable.

Speaking outside court, Maurice Blackburn lawyer 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.

She said she believed the loss of the case would have broader implications.
"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."

Ms D'Arcy, who was visibly upset, said she believed the judgment would lead to a restriction on research.
"We were doing this for future generations and I'm just so disappointed," she said.

Cancer Council CEO Professor Ian Olver said the decision reflected the lack of progress in patent law. “Today’s outcome shows that the law must be changed to protect the community from gene monopolies,” he said.