Australian court supports patents on human genes

CANBERRA Thu Feb 14, 2013 11:40pm EST

CANBERRA (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 genetic material.

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," Nicholas said.

The finding disappointed cancer support groups, consumer organization 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 monopolize 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 in NEW YORK; Editing by Paul Tait)