Who owns our genes?

3 July 2012

The fundamental question of whether we own our genes when they're outside our body is currently being considered by the Federal Court.

The groundbreaking test case focuses on whether isolated human genes can be patented.

Maurice Blackburn is running the case pro bono through our Social Justice Practice, with support from barrister David Catterns QC and Professor Peter Cashman of Sydney University. 

Maurice Blackburn Principal Rebecca Gilsenan said the genes in question were associated with breast and ovarian cancer, but the outcome of this case had the potential to impact millions of Australians who could directly or indirectly benefit from medical genetic testing at some stage in their life.

"The decision about who owns the knowledge about genetic material leads on to who can control the use of that knowledge," Ms Gilsenan said.

"The law states that patents protect 'inventions', not 'discoveries'. 

"If the Federal Court finds that a corporation can own a patent of a gene, then the company could hold people to ransom over medical testing related to that gene, and scientific research could be stifled.

"We've teamed up with national consumer organisation Cancer Voices Australia and Yvonne D'Arcy, a Brisbane woman with breast cancer, and we're challenging biotech companies Myriad Genetics Inc and Melbourne-based Genetic Technologies Ltd.

"The case focuses on the patent over mutations to an isolated human gene known as BRCA1. When these mutations exist on the BRCA1 gene they are associated with an increased risk of hereditary breast and ovarian cancer.

"A patent is a monopoly right to control the use of an invention. The law is clear that only inventions which constitute a "manner of manufacture" or "manner of new manufacture" can be patentable. 

"If we win this case, it will enable Australian women to have the freedom of choice over their medical testing. It will also allow for much more diverse research into gene mutations.

"At the moment, anyone who wants to study patented gene mutations has to either gain permission from the patent owner, or run the risk of being sued. Limiting the provision of these patents will allow researchers to focus on what they do best - coming up with cures and treatments, rather than worrying about the law."

The Federal Government's patents body, IP Australia, has been handing out patents over isolated human genes for some years. No laws have been passed to specifically allow this, and no Australian court has ever decided whether the practice is legal.  That's why this case is breaking new ground.

Read our original media statement.