Simon Santow reported this story on Friday, September 5, 2014 12:34:00

ELIZABETH JACKSON: Companies in Australia will continue to be allowed to patent human genes after the full bench of the Federal Court this morning refused an appeal by a breast cancer survivor.



Brisbane woman, Yvonne D'Arcy, took the US-based company Myriad Genetics to court to try to overturn the patent covering mutations of human genetic material.



The woman's lawyer says the decision means that human genes are owned by corporations and that, as a result, vital testing might become too expensive for many Australians.



Simon Santow reports.



SIMON SANTOW: Mutations of an isolated gene known as BRCA1 bring an increased risk of hereditary breast and ovarian cancer.



The company Myriad Genetics Inc owns the patent over the gene, and today the Federal Court rejected a challenge to the validity of that patent.



REBECCA GILSENAN: It's extremely disappointing that the Federal Court made this decision.



SIMON SANTOW: Rebecca Gilsenan is principal lawyer at Maurice Blackburn, the firm which took the action on behalf of Yvonne D'Arcy and the group Cancer Voices Australia.



REBECCA GILSENAN: Gene patents are a matter of great concern to the medical research community and to the medical profession.



Importantly, for thousands of Australians, they're very concerned to learn that their genes are owned by unknown corporations.



We'll take the decision away, review the opportunities to appeal but on a matter of such significance, we will not give up easily.



REPORTER: What are the health implications for this decision given that, you know, people no longer own their genes?



REBECCA GILSENAN: People already don't own their genes in Australia and the implications are that it places limits on genetic testing, genetic research and the development of treatments and cures for genetically associated disease.



SIMON SANTOW: The judgment appears clear-cut, and the plaintiffs only have the High Court open to them as a possible final legal appeal.



REBECCA GILSENAN: The other avenue that we and the rest of the country have available is to lobby the Government to change the law because if this is the law, then the law should be changed.



Of course, we've spoken to Yvonne and she's devastated but she, similarly, does not give up easily.



SIMON SANTOW: How do you respond to the argument that these companies need to spend money to invest and that that money wouldn't be spent if you were able to patent it?



REBECCA GILSENAN: I think that our position around, I think the issue of innovation and what stifles or encourages innovation is a very complex question.



But our position is that gene patents actually stifle innovation and the important innovation that should be happening is the entirety of the scientific and medical research community having access to genes so that innovation, in terms of treatments and cures, can be developed.



SIMON SANTOW: But if the law is so clear-cut, ought you just to take the loss and work in a different way to change it?



REBECCA GILSENAN: We may well have to. We have to go away and consider whether we've got a basis to appeal to the High Court and if we don't, this fight needs to go to the governments.



SIMON SANTOW: The lawyers had been heartened by a US Supreme Court ruling which said the gene discovery was a product of nature and not from human intervention.



It therefore ruled the patent in the United States invalid.



The Australian judges made reference to that finding but dismissed its relevance to Australian law.



Now the plaintiff is making a desperate plea to Myriad Genetics to hold off enforcing its patent here.



REBECCA GILSENAN: We would call on the company that owns the BRCA1 patent to continue not to enforce those rights.



SIMON SANTOW: Do you think there's much chance of that given that they've fought this case?



REBECCA GILSENAN: I think that if they sought to enforce their rights, there would be so much public outrage that it would make it very difficult and uncomfortable for them.



SIMON SANTOW: In a statement to The World Today, Myriad Genetics says it is satisfied with the court's decision and it says it's consistent with the laws and the weight of the evidence.



ELIZABETH JACKSON: Simon Santow reporting.