Your genes are the same, whether in a test tube or inside your body. But the very act of removing them makes them a patentable invention, according to Australia's Federal Court. Today, it handed down the country's first decision on gene patenting.
By isolating a human gene from the body, even assuming it has "precisely the same chemical composition and structure as that found in the cells of some human beings", Justice John Nicholas said an "artificial state of affairs" had been created, making the gene patentable material.
The ruling relates specifically to a patent for a series of mutations in the BRCA1 genes, which are associated with an increased risk of breast and ovarian cancer. Tests for the genes can help determine the likelihood of someone developing the diseases at a later date. The patent, which was filed by Myriad Genetics in 1994, in principle gives the company exclusive rights to perform such tests in Australia. The firm's patent was later contested by Cancer Voices Australia, a patient advocacy group, and Yvonne D'Arcy, who had previously had breast cancer.
Today's decision has raised eyebrows. "It is difficult to think of the circumstances where an artificially created state of affairs would not exist whenever there is some form of human intervention," says Dianne Nicol at the University of Tasmania, Australia, who specialises in law and human genetics.
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