Court dismisses second appeal to overturn ruling on corporate human gene patenting

Updated

The full bench of the Federal Court has thrown out an appeal against a ruling allowing private companies to patent human genes.

Last year breast cancer survivor Yvonne D'Arcy lodged an appeal after two bio-tech companies were granted the patent to a hereditary gene associated with an increased risk of cancer.

A court had previously ruled the patent applied because the genetic material needed to be extracted from the body to be tested.

Ms D'Arcy, from Brisbane, argued the genes existed in nature, so were discovered rather than invented.

She said she launched the case even though she herself did not have the BRCA1 gene.

Her case was against US-based company Myriad Genetics and Melbourne-based company Genetic Technologies.

The full bench of the Federal Court in Sydney has today dismissed her second appeal in the case, stating that "expressions such as the work of nature or the laws of nature are unhelpful when dealing with claims of a kind in this case".

"One may distinguish between discovery of a piece of abstract information without suggestion of a practical application to a useful end, on the one hand, and a useful result produced by doing something which has not been done by that procedure before, on the other," the five-judge panel said.

'Genes owned by unknown corporation'

Ms D'Arcy's lawyer Rebecca Gilsenen from Maurice Blackburn said the judgment was disappointing.

It has long term consequences for research and genetic testing and the patent is preventing other companies doing research that might help save lives Rebecca Gilsenen, chief lawyer

"We are very disappointed that the Federal Court has dismissed the appeal and upheld the validity of the gene patent," she said.

"Gene patents are a matter of enormous public interest and concern to the medical community to ordinary Australians who are shocked to find that their genes are owned by an unknown corporation."

Ms Gilsenen said they the legal team would be considering its options after looking at the judgment in detail.

"It has long-term consequences for research and genetic testing and the patent is preventing other companies doing research that might help save lives," Ms Gilsenen said.

In 2013, a nine-judge panel in the US Supreme Court ruled that genes extracted from the human body were not eligible to be patented.

Patent lawyer and Adjunct Professor in the School of Law at Murdoch University, Dr Luigi Palombi, said the Federal Court's "decision ignores the bedrock principle of 400 years of patent law".

"Only an invention can be the subject of a patent. The decision ignores the scientific facts. It ignores good policy. And it ignores common sense. Australian ingenuity in the biological sciences is now handcuffed by this decision," he said.

"How is it possible that the US Supreme Court unanimously came to the exact opposite result in only three months? Despite the attempt by the full Federal Court to try and differentiate the precise claims between the Australian and US patents that Myriad has over the BRCA 1 genetic mutations, the so-called invention is the same.

"At the end of the day, the Australian patent claims pieces of genetic material (BRCA 1 gene mutations) extracted from the human body are an 'invention'. How is that something anyone invented?

"American scientists, universities and companies now have the freedom to ignore patents over isolated biological materials that are not 'markedly different to any found in nature', but Australian scientists, universities and companies cannot.

"This decision reinforces the need for the Australian Parliament to change patent law in Australia."

The Australian Cancer Council (ACC) has released a statement saying that gene patent laws needed to be changed to protect healthcare consumers from gene monopolies.

Director of advocacy for the ACC, Paul Grogan, said he believed there was a strong case to change the law around gene patents.

"The patents system should reward innovation and help deliver affordable healthcare, not stymie research and increase costs by allowing commercial entities to control the use of human genetic materials," Mr Grogan said.

Topics: science-and-technology, genetics, courts-and-trials, australia, sydney-2000, brisbane-4000

First posted