Reports from Australia have indicated that lawyers representing a U.S. biotechnology company have defended the grant of a controversial patent over a common genetic mutation linked to breast cancer.
Rejecting the idea that patenting a genetic variety within the human body is the first step to privatizing individuals, the court case involving the U.S. company, Myriad Genetics, is being anxiously followed by patient groups, legal teams, healthcare professionals and public figures.
Myriad Genetics aquired a patent for the BRCA1 breast cancer genetic mutation in 1994, based on the terms that could be considered an 'invention':
"Removing it from the body changed it chemically, structurally and functionally."
Myriad Genetics reportedly tested 'thousands and thousands' of people in order to identify the mutation within a cell genome, and the case hinged on the key point that once the isolated nucleic acid is removed from a body, then its chemical construction is different. Therefore, once removed, it can be considered an invention rather than a natural body chemical.
Not everyone agrees. Rebecca Gilsenan, principal lawyer representing Cancer Voices, said that the gene's key components, its chemical structure, is not changable depending on its location. Therefore, the genetic mutation should be considered a discovery, and not an invention.
If the gene discovery remains patented, then it is possible that a trend of 'body patents' may come into being -- and this could affect future patient care, rather than only cancer tests. In 2008, a Melbourne-based company that owns the Australian rights to Myriad's genetic patent contacted eight laboratories that were conducting cancer tests, insisting that all future tests would be conducted by them only -- as per their patent rights.
In the face of a Senate inquiry and public fury, the company backed down -- but not before the issue of such patents was brought to light and the motion to ban such patents was sought.
In 2010, this patent was overturned by a court based in the United States, and it has now been reversed by appeal, with the possibility of going further to the U.S. Supreme Court.
Is the genetic mutation a discovery, or an invention?
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