Australian Corporations Can Patent Human Genes
Remember on Orphan Black, when (spoiler!) Cosima discovered that the big bad corporation had patented the clones' genomes? Although we haven't yet successfully managed human cloning, the Federal Court of Australia has ensured that corporations can, in fact, legally put patents on human genetic material. If it sounds dystopian that human genes can now be considered intellectual property, that's because it probably is.
Today, an appeal was rejected by the Federal Court that challenged the decision that genes removed from the human body were patentable by private companies. If they are still inside the body, then they are not patentable, but the judges argued that the isolation process itself altered the genes' functionality enough that the company had the right to claim ownership. The case began when Myriad Genetics placed a patent on mutations in the BRCA1 gene that have been shown to be linked to an increased risk of ovarian and breast cancer. The patent effectively prevents any other company from selling tests meant to detect these mutations. Breast cancer survivor Yvonne D'Arcy, in conjunction with patient rights group Cancer Voices Australia, sued over their right to patent genetic material, but the court ruled in favor of Myriad Genetics last year.
The decision explicitly contrasted the U.S. Supreme Court's decision last year that isolated genes could only be patented if they were altered by the company in some way: "In the decision of the US Court of Appeals for the Federal Circuit, Bryson J (dissenting) drew on a metaphor, likening an isolated nucleic acid and a branch being snapped off a tree. That is inapposite. The branch has not changed – it is simply divorced from the tree, whereas the chemical and physical makeup of the isolated nucleic acid renders it not only artificial but also different from its natural counterpart...The claimed product is not the same as the naturally occurring product. There are structural differences but, more importantly, there are functional differences because of isolation."
The judges stressed that they were steering clear of the moral and social implications of their ruling, which are considerable: "This case is not about the wisdom of the patent system. It is about the application of Australian patent law... It is not about whether, for policy or moral or social reasons, patents for gene sequences should be excluded from patentability. That has been considered by the ALRC and by Parliament and has not occurred." But Matthew Rimmer, an expert in intellectual property law at the Australian National University, felt that they were remiss in purposely ignoring these factors. "Particularly with controversial patents in the life sciences, there is a need for judges to grapple with the wisdom of the patent system," he said.