JURIST - Paper Chase: Australia court allows US company to patent breast cancer gene

[JURIST] An Australian court ruled [judgment] Friday that an American biotech company can patent a human gene linked to an increased risk of breast cancer. The Federal Court of Australia [official website] held that Myriad Genetics [corporate website], a US biotech firm, could patent the gene BRCA1 because the gene is not natural, but rather the product of human intervention. The plaintiffs in the case, Cancer Voices Australia [advocacy website], criticized the court ruling [CNN report] as detrimental to cancer patients and argued that genes are products of nature that cannot be patented. Judge John Nicholas rejected the plaintiffs' argument, holding that although naturally occurring genes could not be patented, BRCA1 could be patented because it was artificially created:

There is no doubt that naturally occurring DNA and RNA as they exist inside the cells of the human body cannot be the subject of a valid patent. However, the disputed claims do not cover naturally occurring DNA and RNA as they exist inside such cells. The disputed claims extend only to naturally occurring DNA and RNA which have been extracted from cells obtained from the human body and purged of other biological materials with which they were associated.

The plaintiffs plan to appeal the ruling to the High Court of Australia [official website].

A similar gene patent case is pending [JURIST report] before the US Supreme Court [official website]. The American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint, PDF] against Myriad Genetics in 2009, arguing that genes could not be patented because they are products of nature, and patenting genes would violate the First Amendment [ACLU backgrounder]. The US District Court for the Southern District of New York [official website] ruled in favor of the plaintiffs, but the US Court of Appeals for the Federal Circuit [official website] reversed the ruling [JURIST report] in August, saying that Myriad had a right to patent the isolated cells because they were "transformed" and Myriad's method of isolation included steps that were not naturally occurring. When asked to reconsider the case in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc. [opinion, PDF], a case in which the Supreme Court ruled earlier this year to deny medical tests relying on correlations between drug dosages and treatment cannot be patented, the judges were split on how it applied and each stuck to his or her original decision on the outcome.