Can BRCA gene be patented?

A year after the U.S. Supreme Court’s landmark decision on breast cancer BRCA1 and BRCA2 human DNA patent case that went against the interests of Myriad Genetics, the Australian Federal Court, on September 5, upheld the patents for the mutant BRCA1 human DNA.

Products of nature

The U.S. Supreme Court had revoked the patent awarded to the company on the grounds that isolation of the DNA from human body alone does not amount to innovation and hence was not patentable. The isolated genes are in no way different from what are produced in nature.

But the Australian court, which did not find merit in this, has awarded patents for the company. The American company has achieved in Australia what it failed to achieve in its own country.

The move would surely be hotly contested. Already, Maurice Blackburn, the lawyers that brought the case, is determined to fight it “to the end.”

Even if the ruling is eventually overturned, it is a setback, even if temporary, in the fight against the trend of patenting products of nature.

“Isolation [of the gene], does produce something that is not inherent in the human body, it is a different structure in the sense it is not surrounded by the things it is in the cell with,” Bernadette Hawkins, a patent and trademark attorney at law firm Cullens was quoted as saying in the Sydney Morning Herald.

A genetically modified bacterium that degrades crude oil was awarded a patent years ago in the U.S. It involved a fair amount of innovation. Can isolation of the BRCA genes from the human body match it?