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Australian Federal Court Rules For Patent Over Breast Cancer Gene
Bulldust writes "The Federal Court in Australia has ruled in favor of U.S. biotechnology company Myriad Genetics, enabling them to continue to hold the patent over the so-called breast cancer gene BRCA1. The same patent is also being reconsidered by the U.S. Supreme Court in the current session. From the article: 'Federal court Justice John Nicholas has ruled that a private company can continue to hold a patent over the so-called breast cancer gene BRCA1, in a decision that has devastated cancer victims.The decision is the first in Australia to rule on whether isolated genes can be patented, and will set a precedent in favor of commercial ownership of genetic material.'"
This is another example of where the patenting system (around the World it seems) has just gone completely stupid. A gene is a naturally occuring entity and should not be patentable. Patents are there to give right of ownership of a novel idea, concept or mechanism, not things that already exist in nature. Have I got to patent myself now to stop anybody else from 'owning' me?
Smivs on the intertubes!
A couple of points:
1. The research wasn't completely privately conducted (universities, and other government-funded organisations were involved), so I think there is probably some reasonable expectation that the community will benefit as a result.
2. I don't think it is acceptable for the manufacturer of the test to be able to set whatever price it chooses, even if that involves mandated licensing. That isn't to say that the business should not be able to make a respectable profit - after all, there was some risk involved on their part. However, because of the implications of the government-granted monopoly I think it is fair to have some constraints on that monopoly even within the 20 years.
3. The real issue is actually the patenting of the gene itself. Patenting of the test is fine: it is an invention, and so a monopoly can be granted on that. However, the same can't be said of the genes.
If you read the ruling this Justice is out of line and is not upholding the law, but creating it.
In response to an argument that this is a discovery and not an invention he actually states that if society does not provide financial incentive, companies wont be incentivised to perform genome research.
So basically he has extended the concept of a patent to include discoveries in addition to inventions because he has a personal belief that because it takes lots of money to discover a particular gene, the discoverer should therefore have a monopoly on it.
It is not his role to extend or create laws, it is his role to enforce the law as written, and no law has been passed stating that we as a nation consider a discovery worthy of a patent.
If the company owns our genes, shouldn't they be held responsible then they go wrong?
I say: the company should be held liable for any damages caused by occurrence of the gene. Anywhere. That should serve them right.
One way patenting genes differs from patenting some kind of mechanism, is that there's almost always another way to accomplish what that mechanism does. I've heard a number of engineers make statements to the effect that the most important thing about an invention is that what it does is possible. So while a monopoly on a mechanism design is valuable, it does not stop all competition in that field of endeavor.
A monopoly on a fact about nature isn't like that. If somebody claimed a patent on gravity, there are no alternatives. If someone patents a gene's involvement in a certain disease, there is no substitute for that fact to be discovered.
Monopolizing genetic treatment and diagnosis of breast cancer by patenting BRCA1 is like monopolizing all flying and lifting machines by patenting gravity.
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