March 2010
A US court ruling that patents should never have been granted for the BRCA1 and BRCA2 gene mutations linked to breast and ovarian cancer reinforces Cancer Council Australia’s call for gene patenting reform in Australia.
The judge’s finding that biological materials in an isolated form are discoveries, not inventions, and therefore should not be patented clarifies the ambiguity that has clouded the gene patenting debate. Cancer Council and other non-profit healthcare and research groups have long held the view that natural biological materials should be freely available for research and non-commercial public health purposes.
Genes are natural occurrences in the body that are easily discoverable and therefore do not meet the legal definition of ‘inventions’ to make them patentable.
The current patent system facilitates monopolies by gene-owning companies, which can drive up testing costs for patients and reduce access to tests. Gene patents can also prevent the wider scientific community from sharing important medical knowledge and making use of genetic information to develop new diagnostic tests and new treatments for diseases.
In 2008, the Australian licensee for the BRCA1 and BRCA2 patents tried to establish a commercial monopoly by demanding that public laboratories cease conducting the tests. There was nothing in the law to protect the public interest from such a monopoly.
Australia should set a global precedent and put public interest at the forefront of genetic science by invalidating the patenting of genes.
We are on the cusp of a surge in the use of genes in predicting, diagnosing and treating illnesses like cancer. Our patent laws, based on centuries-old principles, are out of date and need to be overhauled to exclude genes. The patent system should be about protecting inventions, such as medicines developed from genetic material, but not the material itself, which is a product of nature.
For a court in the US – where many of the world’s gene patents are held – to reach such a determination is a major breakthrough towards protecting the public interest from commercial monopolisation of genetic material.
This development from the US should send a message to Australian policy makers that there is increasing legal recognition that gene patents are invalid. We trust the Senate committee inquiring into this issue is watching with great interest.
To read about Cancer Council's position on gene patents, click here.