Lakshmi Kumaran & Sridharan AttorneysAn ISO 9001 / 27001 certified law firm

Gene patentability under challenge

22nd February, 2012

The Australian Federal Court will shortly decide a petition challenging the validity of patents granted to genetic material. Myriad holds the patent for BRCA1 and BRCA2 genes. Mutations in the BRCA gene are said to have a correlation with susceptibility to ovarian and breast cancer.

In a ruling in August, 2011  the United States Court of Appeals for the Federal Circuit upheld the patentability of “isolated DNA' which is different from DNA occurring in its natural form. However, there have been protests that granting exclusivity to genetic material has huge cost implications for medical research and treatment. A writ of certiorari against this decision is also under consideration of the US Supreme Court.

It is interesting to note that Senate Community Affairs References Committee which looked into ‘gene patents’ and the Australian Law Review Commission had recommended that the Australian Government should expand data collection and study financial impact of gene patents on delivery of health care. In its response in November 2011, the government was disinclined to agree with this. It however accepted the recommendation to refrain from amendments to the existing law to exclude patenting of genetic material. Also rather than expanding ‘existing circumstances in which social and ethical considerations may be taken into account in decisions about granting patents’, the government said that patent system should reflect contemporary community expectations.
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