Nicholson J has "quietly" handed down a disappointing judgment, Cancer Voices Australia v Myriad Genetics Inc  FCA 65, which allows the patenting of isolated genes in Australia
In 2012, Cancer Voices Australia and Yvonne D'Arcy sued Myriad Genetics. The Federal Court was asked to decide whether genes could be patented. Myriad Genetics had obtained a patent on a breast cancer gene from our patent office. More specifically, Myriad Genetics obtained a patent on the BRCA1 gene, the gene recently made famous by Angelina Jolie.
The BRCA1 gene is not an invention. It is something that exists in nature. It was discovered, not invented. Therefore, in the writer's view, it should not be patentable. Judge Nicholas even acknowledged that a gene that is in the human body, cannot be patented. However, Judge Nicholas then turned around and held that once the gene is isolated, that is, removed from the human body, it can be patented.
With respect, the consequence of making an isolated gene patentable is that the gene in the human body and its genetic coding can no longer be freely used. In effect, the Court held that a gene is patentable.
What is disturbing is that the Myriad Genetics judgment of the Federal Court of Australia seems to take it a step further than the Canadian Percy Schmeiser case.
The Percy Schmeiser case concerned a genetically modified organism, an organism that had an isolated gene from another species introduced. This altered organism is the subject of a patent, not the gene itself.
The Myriad Genetics case on the other hand allows patents on an actual existing genes. Nothing new is created by isolating the gene.
In the writer's view, the Myriad Genetics judgment is non-sensical and has the potential to result in very unfair outcomes, worse than the outcome of the Percy Schmeiser case. It further erodes our patent law.
There is however still some hope. The second applicant, Yvonne D’Arcy, a cancer survivor, has appealed the Myriad Genetics decision to the Full Federal Court. The hearing is expected to occur some time in August 2013.
This Myriad Genetics judgment has potentially far-reaching consequences that most of the public would not approve of.
You can read the judgment here: Cancer Voices Australia v Myriad Genetics Inc  FCA 65.
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If you would like to find out more about the problems arising from patenting of genes, please contact Beatrice Ludwig on 0410 583 550 or by email: email@example.com.
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Beatrice Ludwig is the Principal Solicitor at Ludwig Lawyers.