Cancer Voices Australia v Myriad Genetics: Battle between Discovery and Invention to Continue

Recently we posted on the case Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 where the Federal court ruled that a private company can continue to hold a patent over the breast cancer gene BRCA1 - a decision that was reported as "devastating for cancer victims". On 4 March 2013 Maurice Blackburn announced that it had lodged an appeal in the Federal Court against the 15 February 2013 decision of Justice Nicholas – see Press Release.

Why decision will be appealed

The press release quotes Rebecca Gilsenan a principal at Maurice Blackburn:

"We believe we have a good basis to appeal the decision that isolated human genes are patentable. We intend to continue the challenge to the monopoly created by the patent held by Myriad and to refute the point that isolated human genes are a manner of manufacture and an artificial state of affairs."

More about the issues invloved

In a lengthier article published on the Aljazeera website Ms Gilsenan the principal lawyer at Maurice Blackburn in the case against Myraid Genetics goes into detail on the issues involved and why the fight continues on appeal. 

A key concern is that while some welcome the decision in Myriad as a victory for innovators a reward for their investments in research and development there is also to be considered and acknowledged the amount of public funding going into research. Funding from taxpayers which, should not resource the privatisation of a public service like healthcare.

Other problems that flow from human genes being held to be patentable properties are:

• the loss of the significant benefit to the public of being able to study and make productive use of underlying genetic material which is naturally occurring, and
• the denial of access by way of a patent, removing the ability to make use of the knowledge in innovative ways.

US government takes the isolated genetic material should not be patentable line

As the article points out the US government has taken on support for these issues by filing a brief in parallel proceedings to be heard in the US Supreme Court in April 2013.

“The US government has concluded that isolated genetic material should not be patentable. For non-scientists, it is a fascinating insight into the world of gene research.”

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