LBN recently reported on a story from Australia in which the High Court of Australia held that Myriad Genetics, Inc., an American company could not patent the gene coding for a BRCA1 protein. The decision is an important one for Australian women concerned about breast cancer. The lawsuit was brought by cancer survivor Yvonne D’Arcy. Attorney Rebecca Gilsenan handled the lawsuit and discusses it in this report.
Gilsenan explains that the ruling in the BRCA1 case came from the Australian counterpart of the U.S. Supreme Court, and the ruling on appeal reversed rulings in the lower courts in favor of Myriad Genetics. Gilsenan says the key to the decision is that the High Court recognized that what Myriad sought to patent was “the information in the genetic material.” The argument was not about chemistry or the chemical makeup of anything. The struggle was to patent information from the gene itself. The High Court recognized that the nature of the information was not something unique that a company could patent.
The effect of this ruling will be to make testing for this breast cancer indicator more affordable. The incentive for the lawsuit was an indication that Myriad Genetics intended to enforce its then-existing patent right, which would drive up the cost of testing for millions of Australian women. Gilsenan says that the lawsuit was an important decision whether Myriad Genetics enforced the patent or not. The case makes plain that some things just cannot be patented. This case will foreclose other efforts to patent genes in Australia.
The Australian decision is in accord with the U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics. Gilsenan notes that the issue of patentability of genes is being considered in other countries, including Canada. Gilsenan believes that Canadian lawyers will be citing the Australian and U.S. decisions in their arguments before the courts in Canada when this issue is litigated.
Rebecca Gilsenan is a prinicipal in the Australian law firm Maurice Blackburn Lawyers in Sydney. She has extensive experience in running complex and novel litigation, including class actions in the areas of price fixing, failed investment schemes, product liability and securities. She is on the board of the Public Interest Advocacy Centre and is a member of the Advisory Council to the UNSW Law School. She was previously on the board of Guthrie House. The Legal Broadcast Network is a featured network of Sequence Media Group.