Explainer: cancer gene legal case a win for corporate medicine or common sense?

Sept. 28, 2014, 12:15 a.m.

This month the Federal Court decided that private companies have the right to control human genes in an important test case. A sensible win for private investment in research or a scary corporatisation of our shared genes? Jane Lyons sequences the debate.

This month the Federal Court decided that private companies have the right to control human genes in an important test case. A sensible win for private investment in research or a scary corporatisation of our shared genes? Jane Lyons sequences the debate.

Q. What was the "breast-cancer gene" court case about?

A.Social justice law firm Maurice Blackburn, which launched the court case in 2010, has gone two rounds with US biotech behemoth Myriad Genetics to invalidate its Australian patent for a mutation of the BRCA1 gene. This gives the patent holder a monopoly over the breast and ovarian cancer gene itself as well as its diagnostic test.

It lost the first Federal Court round last year and copped another beating in the appeal this month. But while this case was ostensibly about one patent, both sides have had their eyes firmly on the bigger prize.

For Maurice Blackburn, the BRCA1 case tests the controversial practice of gene patenting, which has been happening in Australia since the 1990s and has never been legally challenged here.

The lawyers arguethe practiceis based on an invalid premise:that isolating a gene from the body makes it an "artificial state of affairs" and therefore an invention (which can be protected by a patent), rather than a discovery (which cannot).

Their problem with these patents? Monopolies, higher test costs for patients, the stifling of genetic research and the questionable ethics of a company owning the rights to our genes.

Over in the other corner, Myriad has been fighting not only for its future but also for the biotech industry, which has anxiously watched the outcome. Myriad's 20-year BRCA1 patent expires next August, but it has more gene-patent irons in the fire. It argues that the isolation and chemical modification of BRCA1 needed to analyse it in the laboratory makes it an innovation worthy of patent protection.

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Explainer: cancer gene legal case a win for corporate medicine or common sense?