Australian federal court throws out appeal on gene patenting

Gene sequences isolated from the human body are patentable,
according to a ruling by the Australian federal court. The ruling upholds a decision last year to uphold a patent over an isolated version of the BRCA1
gene mutation, held by US-based biotech firm Myriad Genetics.

Mutations in BRCA1 are linked to an increased risk of hereditary
breast and ovarian cancers. The patent in question is part of a portfolio that confers
exclusive rights to perform the genetic tests that can identify these risky
mutations, and Australian company Genetic Technologies is currently licensed
to use the tests in Australia and New Zealand.

Cancer Voices Australia, an advocacy group, sought to
oppose the patent, arguing that genes are naturally occurring substances and,
as such, cannot be patented. Along with cancer patient Yvonne D'Arcy, the group
took Myriad Genetics and Genetic Technologies to court, but in February 2013 a judge rejected their application, ruling that isolating the gene requires
human intervention and so can be patented under Australian law (reported in BioNews
693).

Following an appeal heard by the full court, the latest
decision affirmed the earlier ruling,
explaining that the nucleic acid isolated was different in chemical composition
from its state in the body. It held: 'In
our view the products [in question] are different to the gene comprising the
nucleic acid sequence as it exists in nature'.

'The isolation of the nucleic acid also leads to an
economically useful result — in this case, the treatment of breast and ovarian
cancers. This is surely what was contemplated by a manner of new manufacture [under
Australian law]'.

The ruling may have significant implications for Australia's
medical research. '[The decision] has long-term consequences for research and genetic testing, and
the patent is preventing other companies doing research that might help save
lives', Rebecca Gilsenan from Maurice Blackburn Lawyers, who represented D'Arcy
and Cancer Voices Australia, told Yahoo! News.

Gilsenan said there are now two options available to the appellants:
appeal to Australia's High Court or 'lobby the government to change the law'.

Patent lawyer Dr Luigi Palombi, who was not involved in the
case, also told Yahoo! News: 'Only an invention can be the subject of a
patent. The [Australian federal court's] decision ignores the scientific facts.
It ignores good policy. And it ignores common sense'.

Myriad's patents over the BRCA1 and BRCA2 genes were declared
invalid by the US Supreme Court in June 2013, which ruled that companies could
not patent isolated forms of genes since they are 'products of nature' (see
BioNews 709). However, the Australian federal court said the US court's emphasis
on the similarity of the ordering and location of nucleotides was 'misplaced',
stressing that the chemical changes in the isolated nucleic acid were of
'critical importance' in distinguishing the resulting product as 'artificial'.

The federal court also said that the policy or moral
questions over the patentability of gene sequences were for Parliament
to decide, noting that it had in fact decided not to exclude it from
patentability.

Myriad holds patents relating to
isolated forms of both BRCA1 and BRCA2 gene mutations, which carry a lifetime
risk of contracting cancer of between 45 percent to 90 percent. Its BRCA1 patent is due to expire in August 2015 in Australia.