Illustration: dream designs / Shutterstock.com
5 March 2013Asia-Pacific

Australian Myriad ruling to face appeal

Law firm Maurice Blackburn revealed on Monday that it will appeal against an Australian court decision that backed Myriad Genetics’ ownership of a human gene mutation linked to breast cancer.

Rebecca Gilsenan, partner at the Australian law firm, represented Cancer Voices Australia and Yvonne D’Arcy, a Brisbane resident diagnosed with breast cancer, when they challenged Myriad’s patent in 2010.

The patent covers BRCA1, the isolated RNA coding for a gene mutation that has been linked to the development of breast and ovarian cancers.

Federal Court Justice John Nicholas ruled in February 2012 that Myriad’s patent is valid, as it covers a gene isolated from the human body, consisting of an ‘artificial state of affairs’, rather than a naturally-occurring gene.

The ruling means that Myriad can continue exclusively carrying out tests with the gene mutation.

Cancer Voices Australia said gene patenting allows companies to monopolise genes, and that the practice will make cancer treatments “increasingly costly and slow”. Others say that patenting genes is important for innovation.

Gilsenan confirmed that Maurice Blackburn will appeal against the 2010 ruling on behalf of D’Arcy but not Cancer Voices Australia: “We believe we have a good basis to appeal the decision that isolated human genes are patentable.”

“We intend to continue the challenge to the monopoly created by the patent held by Myriad and to refute the point that isolated human genes are a ‘manner of manufacture’ and an ‘artificial state of affairs’,” she said.

Kim O’Connell, a partner at King & Wood Mallesons in Sydney, said: “Based on Justice Nicholas’s analysis, I think the prospect of the decision being overturned by the Full Court (appeals court) is low.”

“If the decision were overturned, this would potentially have wide implications for the life sciences industry, as it may be more difficult to protect inventions based on isolated gene sequences.  This may presumably mean that some companies would be less likely to invest in gene-based research.”

She continued: “On the other hand, not upholding claims of this type may have less impact than people anticipate, as this would not translate into invalidity for claims which relate to technical application of the gene sequence, such as a genetic test kit.”

The appeal will be heard later this year at the Australian Full Court.

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