By James Grubel
CANBERRA, Feb 15 (Reuters) - An Australian court ruled on
Friday that two technology companies could hold a patent on
genetic material related to cancer, in a case similar to one
before the U.S. Supreme Court that has implications for
gene-based medicine worldwide.
Cancer support groups said the finding could stifle new
breast cancer research and treatment. Australia's Federal Court
ruled that U.S. company Myriad Genetics Inc and Melbourne-based
Genetic Technologies Ltd had the right to hold a patent on human
The material is known as BRCA1, a mutation associated with
higher risk of hereditary breast and ovarian cancer.
The U.S. Supreme Court will consider the same issue, which
could affect millions of people worldwide, later this year.
In Australia, trial judge John Nicholas found the material
could be subject to a patent because it could not exist
naturally on its own inside or outside the human body.
He found those who develop a way of isolating it should have
the right to a patent and to reap the financial rewards.
"It would lead to very odd results if a person whose skill
and effort culminated in the isolation of a micro-organism ...
could not be independently rewarded by the grant of a patent,"
The finding disappointed cancer support groups, consumer
organisation Cancer Voices, and Brisbane woman Yvonne D'Arcy,
who challenged the patents in the Federal Court.
Lawyer Rebecca Gilsenan, who represented D'Arcy and Cancer
Voices, said the decision could limit new research because
researchers would need the companies' permission to study BRCA1.
"In its isolated form, it is private property of the
companies. If researchers want to access it now, they need to
get permission or pay for it," Gilsenan told Reuters.
"One of the reasons that we agreed to bring this case was
because of a concern about access to research, development of
treatments and cures for genetically transmitted diseases."
Gilsenan said she was likely to appeal against the finding
in a higher court.
Australian Cancer Council chief executive Ian Olver said the
finding would allow private companies to monopolise tests for
the genetic mutations linked to the risk of breast and ovarian
cancer. He said the law must be changed to protect the community
"from gene monopolies".
The Australian findings are unlikely to influence the U.S.
case. The U.S. Supreme Court is due to hear oral arguments on
April 15, with a decision expected by the end of June.
Justice Nicholas said evidence presented in Australia was
different to evidence in the U.S. case, and there were also
different constitutional settings for patent laws.
(Additional reporting by Jonathan Stempel)
Follow us on Twitter @ReutersLegal | Like us on Facebook