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Worse Case Scenario: Company Makes New Medical Breakthrough With Your Genes –But You Can’t Affford to Buy Medicine
This week, Maurice Blackburn announced that the legal challenge to the patenting of human genes will continue and it will file an appeal in the case against Myriad Genetics in the Federal Court.
The original decision upheld a patent over genetic mutations which are associated with an increased risk of breast and ovarian cancer. The Court decided that the isolated genes were patentable on the basis that the gene is extracted from its natural environment by human intervention and therefore constitutes an artificial product.
The applicants in the case argued that the mutated gene is a discovery of a product of nature, not an invention. When it is isolated using well-known laboratory methods, it is not relevantly different from that which exists in the human body.
Myriad Genetics has held the Australian patent since 1994 and provides tests for predisposition to these types of cancer. The company has a monopoly over this testing. It does not currently enforce its monopoly, however it hasthreatened to do so in the past and presumably may do again. Myriad holds similar patents in other countries.
Some have welcomed the decision as a victory for “innovators” who might not have invested in research and development without the promise of reward. As a preliminary point, this argument fails to acknowledge the amount of public funding that goes into this type of research. Taxpayer money should not fund the surreptitious privatisation of a public service like healthcare.
There are other more general problems that follow from human genes being patentable. There is a significant benefit to the public of being able to study and make productive use of underlying genetic material which is naturally occurring. Denying access to this, in the form of a patent, undermines our ability to make use of the knowledge in innovative ways.
This is the argument of the US government, which has filed a brief in the parallel proceedings which will be heard by the US Supreme Court in April. 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.
