Myriad Genetics, a US biotech firm, holds a patent on an isolated form of the gene, BRCA1. The patent allows the company exclusive rights to perform genetic tests that can detect an increased risk of developing breast and ovarian cancers.
Cancer patient Yvonne D'Arcy and advocacy group Cancer Voices Australia brought the case against Myriad Genetics and Genetic Technologies, the only company licensed to use these genetic tests in Australia and New Zealand. The plaintiffs argued that naturally occurring substances, such as genes, cannot be patented and that patents protect inventions, not discoveries.
Justice John Nicholas rejected the argument on the grounds that isolating the gene requires human intervention. This is the first time an Australian court has had to consider the validity of genetic patents.
'I won't give up the fight because this is too important for future generations of people who at some point in their lives may need testing and treatment for cancers and other diseases', said D'Arcy.
Myriad Genetics also holds a patent for the isolated form of the BRCA2 gene. Mutations in the either of the BRCA1/2 genes can increase a woman's risk of breast cancer. It is estimated that faults in these high-risk genes affect one in 500 people.
Among women with the faulty genes, 50 to 80 percent will develop breast cancer in their lifetime. Of those women without the mutations, 10 percent are at risk of developing breast cancer before they are 80 years old. The BRACAnalysis genetic test created by Myriad Genetics can detect the presence of risky mutations.
Myriad's patents over the BRCA1 and BRCA2 genes have generated much controversy, with the American College of Medical Genetics accusing the company of attempting to gain ownership over the human body.
'This is the beginning of personalised medicine', Sally Crossing, a spokesperson for Cancer Voices Australia, told CNN. 'Any testing or access to material for researchers needs to be made as free and as easy as possible for them just to speed it up'.
Rebecca Gilsenan of Maurice Blackburn Lawyers, who represented D'Arcy and Cancer Voices Australia, said: 'We think there may be grounds to appeal, and that there's a reasonable chance that we will make that decision in the next week or two'.
Myriad Genetics will have to defend its right to patent human genes in the US Supreme Court later this year. A lawsuit filed by the American Civil Liberties Union and the Public Patent Foundation argues that patents on the BRCA1/2 genes are unconstitutional and invalid.
Campaigners have been fighting to have Myriad Genetics' patents declared invalid since 2009. Since then, the right to patent genes has been an on-going battle in US courts, as previously reported in BioNews 675and 669.
The Australian case is called Cancer Voices Australia v Myriad Genetics and was heard in the Federal Court of Australia in Sydney.