US gene patent ruling opens doors for Australian appeal

14 June 2013
A landmark judgment delivered overnight by the United States Supreme Court unanimously ruled that human genes cannot be patented. The decision has implications for the Australian case over the BRCA1 cancer gene patent being fought by Maurice Blackburn Lawyers.

Maurice Blackburn Principal Rebecca Gilsenan, who is heading the Australian gene patent appeal, said the US Supreme Court finding was significant and could potentially open the doors to better treatments for Australian breast and ovarian cancer patients.

"The US decision is a hugely significant development. We are extremely encouraged by this new ruling which supports our argument in the Australian case, by confirming genes are naturally occurring substances that are not patentable," Ms Gilsenan said.

"Currently in Australia, the situation is that genes can be patented by private companies, effectively stopping anyone else from being able to study or exploit gene mutations associated with breast and ovarian cancer.

"That is unacceptable - the ability for others to undertake important research that could benefit future generations should not be put on hold because a company has a patent and therefore a monopoly on this important area."

The US judgment comes after a decision of the Federal Court of Australia earlier this year that ruled that an Australian gene patent that covers mutations associated with breast and ovarian cancer was valid and would remain in place on the basis that the human intervention involved in isolating the gene from the human body was sufficient to render it patentable. 

The US Supreme Court has confirmed, as Maurice Blackburn has argued, that the fact of isolation itself is not sufficient to render genes patentable.

"Our case is that what the patent covers, and what is at odds here, is the information that is encoded on the gene. That information is identical whether the gene is inside the body or isolated from the body and the US Supreme Court has recognised this in its decision," Ms Gilsenan said.

The Australian decision is currently the subject of an appeal, being run by Maurice Blackburn on behalf of Yvonne D'Arcy. Written submissions on the appeal are being filed today and the appeal will be heard by the Full Federal Court of Australia on 7 and 8 August 2013.

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