Bloomberg News

Myriad Genetics’ Australian Cancer Gene Patents Go on Trial

February 21, 2012

(Adds plaintiffs’ lawyer’s comment in 10th paragraph.)

Feb. 20 (Bloomberg) -- Myriad Genetics Inc. and other biotechnology companies can’t monopolize disease treatment by patenting human genetic material, an Australian trial was told in the country’s first challenge to ownership of DNA molecules.

Cancer Voices Australia, a national organization representing cancer patients, and Yvonne D’Arcy, a Brisbane resident diagnosed with breast cancer, sued Myriad Genetics and Genetic Technologies Ltd. in 2010 over a patent the companies have on a gene mutation associated with an increased risk of breast and ovarian cancers.

“Patents protect inventions, not discoveries,” Rebecca Gilsenan, a partner at Maurice Blackburn Lawyers, who represents the plaintiffs, said before the trial. “No Australian court has considered the question of whether isolated human genes are patentable.”

Gene-sequencing breakthroughs are spawning a multibillion- dollar market for drugs and medical tests. In the U.S., health regulators are developing rules for bolstering oversight of laboratory-developed tests and the U.S. Supreme Court may decide tomorrow whether to hear two cases involving patents over genetic material, including a review of an appeals court decision that upheld Myriad Genetics’ patents.

Screening Process

Myriad Genetics, based in Salt Lake City, contends in the Australian case that its screening process that includes an artificially made gene mutation mimicking the one that makes people more susceptible to breast and ovarian cancers should be eligible for a patent.

“You can’t use this to build another human being,” David Shavin, Myriad Genetics’ lawyer, told Federal Court Justice John Nicholas today in his opening statement at the start of the trial in Sydney, referring to the process and mutation. “All you can use it for is to compare” normal and mutated genes.

Australian law allows for patents on artificially created products with economic benefits, including computer programs and business methods, Shavin said.

“The position in the United States is similar to, but not the same as, in Australia,” he said.

The Myriad Genetics process copies gene codes from people, the plaintiffs’ lawyer David Catterns told the judge in his opening statement today.

‘Occurs in Nature’

If the plaintiffs isolated a mutation in a gene from a person’s blood, they would infringe the patent, Catterns said.

“The patent involves precisely the code that occurs in nature,” he said. “This is not patentable on traditional principles.”

The trial is scheduled to take as long as eight days.

“There is a philosophical and ethical issue about the commercialization of the human body,” Gilsenan said. “The patent owner has a right to prevent people from studying and testing for the gene mutation, so gene patents can stifle research.”

The case is: Cancer Voices Australia v. Myriad Genetics. NSD643/2010. Federal Court of Australia (Sydney).

--With assistance from Susan Decker in Washington. Editors: Iain Wilson, Chris Bourke

To contact the reporter on this story: Joe Schneider in Sydney at jschneider5@bloomberg.net

To contact the editor responsible for this story: Douglas Wong at dwong19@bloomberg.net


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