There is an nearly bewildering variance in how the judges here and overseas have interpreted the science.
Advertisement
The case was brought by Yvonne D’Arcy, twice a survivor of breast cancer.
The 69-year-old said she was “thrilled” with the result. However, they said that not all the cancers are inherited from a parent.
For D’Arcy, the latest decision in Australia is vindication.
“Most importantly, the judgment demonstrates that the High Court does understand the genome and can provide a coherent response that is legally impeccable and scientifically credible”. The gene has simply been isolated by Myriad, but it was not “invented” or “manufactured” by them. The High Court took the view that the claimed invention would extend the scope of the concept of “manner of manufacture” and that this was not something which was appropriate for courts to do.
They can also translate to exorbitant costs to patients carrying the gene.
As a friendly reminder, research into this gene is meant to help us better understand how BRAC1 functions in relation to cancer.
“Another piece of misinformation that is going out there is that this decision represents a boon for medical researchers who no longer have to worry about infringing patents”, he continued.
“That fact existed before Myriad worked it out”.
The concern about the potential “chilling effect” on research activities is surprising given that the Australian Parliament recently introduced a statutory defence to infringement for experimental research.
However, he said that the majority of patents being filed relate to the “use of sequences” rather than the sequences themselves. It’s more about the broader implications of what it means in relation to new patents in this area, other patents that it still has ongoing in relation to other things and so on.
The U.S. Supreme Court ruled genes were not patentable inventions but were instead inventions prior to the Australian case, local media reported.
The patent on Dolly the Sheep (below), for example, has been knocked out, because it’s a clone of a pre-existing animal.
Public pressure forced the licensee of the patent to allow labs to test for the genes for free in Australia.
Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia.
“There is a lack of clarity about what patents do, do they drive innovation or not?” So isn’t it silly that we aren’t charging them out the wazoo for it?
A few of the most exciting, and expensive new drug treatments that are emerging are also likely to be affected. For Nicol, this is one of the most exciting ideas to come from the case.
D’Arcy and her lawyers from Maurice Blackburn had successfully argued that BRCA1 was a naturally occurring gene and was not a patentable invention.
“We need laws that reflect current technology and practice”, he said.
Assistant Professor in the University of Canberra’s School of Law, Bruce Arnold, said the decision was a victory for common sense.
Full disclosure: If you think that the title of this article says something in relation to how I feel about this issue, you are absolutely right… The biotechnology company could lobby Parliament to overturn the law.
Further, 41% of those with BRCA mutations had no first- or second-degree relative with breast or ovarian cancer, indicating that family history alone may not be a predictor of risk for a BRCA mutation.
Well, a win of sorts.
Processing of the samples can take up to three months.
Advertisement
KitGuru Says: As Next showed, this sort of patenting gets messy anyway.
