Who owns our genes?
The fundamental question of whether we own our genes when
they're outside our body is currently being considered by the
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
"The law states that patents protect 'inventions', not
"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
"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
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.
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