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Australian Cancer Survivor Fights to Stop Gene Ownership

Common Dreams staff

BRCA1 is a human caretaker gene that produces a protein called breast cancer type 1 susceptibility protein, responsible for repairing DNA.

In Australia today, a cancer survivor and a consumer organization have taken four biotech companies to court over a patent related to a human gene linked to breast and ovarian cancers.

On Monday, an Australian Federal Court began hearing the landmark case brought by the Brisbane woman, Yvonne D'Arcy, and Cancer Voices Australia against the US-corporation Myriad Genetics Inc, owner of the patent.

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The Australian Broadcasting Corporation reports:

A breast cancer survivor says she is challenging a patent claim on cancer genes because she does not want biotech companies to own human material. [...]

The dispute is over the ownership of the gene mutation named BRCA1 that could be used to identify an increased risk of breast and ovarian cancer in humans.

"Patent law is intended to protect inventions, not discoveries. We say that the reason that you can't own a human gene is that it's a discovery of something that exists in nature."

If a woman has a mutation in BRCA1, she has up to an 80 per cent chance of developing breast cancer and also a higher risk of ovarian cancer.

Tests are available but they are controlled by American company Myriad Technologies, which obtained a patent over the mutated gene.

Myriad filed a patent for the gene, but Cancer Voice of Australia has teamed up with (law firm) Maurice Blackburn to fight the claim.

Outside court, breast cancer survivor Yvonne D'arcy said she was worried about a slippery slope when biotech companies start to own this material.

"I'm just hesitant about somebody owning a part of me, or you, or anybody else," she said.

"I don't believe that it's right."

Representatives of the American company told the court that its scientists identified the sequence and have the right to own it.

The government authority that grants patents over genes has previously argued that banning patents would threaten innovation.

Rebecca Gilsenan from Maurice Blackburn says companies should not be able to patent genes.

"Patent law is intended to protect inventions, not discoveries," she said.

"We say that the reason that you can't own a human gene is that it's a discovery of something that exists in nature.

"The other methods and so on in the patent might be inventions, but the first three claims to the gene itself we say are not inventions, and are not capable of ownership."

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Elizabeth Farrelly writing of the case in the Sydney Morning Herald:

It is all very Promethean; a story of money and power and the urge to possess life itself. When Jonas Salk invented the polio vaccine an interviewer asked him about patenting it. Salk laughed. “Could you patent the sun?”

When Jonas Salk invented the polio vaccine an interviewer asked him about patenting it. Salk laughed. “Could you patent the sun?”Few these days have Salk's wisdom. Both Monsanto and Myriad Genetics believe they own the essential stuff of life – and this is what Marsh and D'Arcy are testing. Their two quite separate cases will help shape not just state or country, but the global future of food and health. Small people. Big stuff.

Pivotal to the legal issue is the distinction between art and nature, the made and the found. The made is owned, and can therefore be patented. The found is given, and cannot.

It's no semantic trifle. It's a battle for the commons, as important – perhaps more important – as the enclosure battles of manorial England. Like those enclosures, it is a war waged by the rich against the poor. But now the poor are starting to fight back, in the courts. [...]

Here the argument is about Myriad's right to own a gene – the "breast cancer gene" BRCA1 – that has been extracted from the human body but not otherwise modified.

But how can a private company have intellectual property rights over something that, for better or worse, inhabits every cell in your body? Myriad argues, predictably, that just isolating the gene renders it “markedly different”. Professor Peter Cashman of the University of Sydney's law school argues the other way (as does, now, the US government).

If Myriad wins, it can continue to monopolise not the therapy – oh, no – but the test, for which it charges $US 3200. [...]

Myriad is not alone. About 10,000 genes, more than a third of the human genome, are now privately owned, including genes for muscular dystrophy and polycystic kidney disease. So the implications of this test case, which will start to determine the legality of "owning" genes that were found, not made, are immense.

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