In December 2013, the Federal Court of Australia ruled that a US-based biotech company, ‘Myriad Genetics’, had the right to a patent over a cancer-causing mutation of the BRCA1 gene. BRCA1 is a human tumor suppressor gene found in all humans; its protein, also known as ‘breast cancer type 1 susceptibility protein’, is responsible for repairing DNA. The ruling gave private companies the right to control certain mutations in human genes and to stop anyone else from researching those genes without permission. Myriad also owns the licence for the test for the BRCA gene in Australia and cancer advocates believe that the patent will make testing significantly more expensive and will hamper research and medical innovation.
In September 2014, the Federal Court rejected an appeal to the decision led by cancer patient Y’vonne D’Arcy, who has twice been diagnosed with breast cancer and believes a gene mutation was not a human invention and therefore, not patentable. The Federal Court however ruled that patents on breast genes were valid because the method of isolating the gene was a human invention.
D’Arcy has now taken the case to the High Court. This will decide whether to uphold the Federal Court’s decision. A leading patent lawyer from Western Australia believes that the gene should not be patentable and hopes that the High Court will follow the US Supreme Court decision of last year which unanimously held that natural human genes could not be patented.