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Patent test case breaks new ground
In the first case of its kind in Australia, a legal challenge has today been launched against four biotech companies which hold patents over human genetic material.Launched in the Federal Court…
Lawyers Weekly
In the first case of its kind in Australia, a legal challenge has today been launched against four biotech companies which hold patents over human genetic material.
Maurice Blackburn is arguing that the patent held by companies such as US-based Myriad Genetics Inc and
Melbourne-based Genetic Technologies Ltd is invalid.
In March this year, the Federal District Court in New York found that patents had been improperly granted to Myriad Genetics in regards to two human genes, including BRCA1.
The current case, which is essentially a test case for Australia, is supported by patent law expert Dr Luigi Palombi from the Australian National University and Sydney University. Maurice Blackburn's Rebecca Gilsenan will run the case on a pro bono basis in conjunction with barristers David Catterns QC and Peter Cashman.
"There is a philosophical and ethical issue about the commercialisation of the human body. Beyond that, there is a practical concern - the patent owner has a right to prevent people from studying and testing for the gene mutation, so gene patents can stifle research, the development of treatments, and access to diagnostic testing," Gilsenan said.
"Patents protect inventions, not discoveries. What Myriad has done is discovered and isolated the gene from the human body. We will argue that that does not and can not amount to a patentable invention."
Cancer Voices, a national consumer organisation, is the first applicant in the case and said it has a "fervent interest" in ensuring cancer patients have access to the best available treatment options.
"Cancer diagnosis is a time of stress for all people affected by cancer," said executive officer John Stubbs.
"We want control over our disease and treatment options. Patents have the potential to increase the cost of treating all cancers and perhaps denying a vital pathway to good treatment outcomes."
Yvonne D'Arcy, the second applicant, said she believes patents over human genes are morally reprehensible.
"It's just not right that a company can come along and say that it owns a gene and then control how you get tested for it and who can test you," she said.
"A company shouldn't be able to own genes - they belong to everybody."
