An interesting legal debate reaches the High Court in April
about whether a corporation can own part of a human gene. Genes are
the very formula of what makes us who we are. Genes hold the
inherited codes that determine our physical characteristics,
whether we are tall or short, thecolour of our skin, hair and eyes.
Scientists have discovered some genes also hold keys to whether
some of us are more liable to develop cancers.
A US medical research company has successfully applied for a
patent in Australia for a process that can isolate from the human
body a particular gene associated with cancer called BRCA1. The
test can show whether women have a mutated gene making them more
susceptible to developing breast and ovarian cancer. With such an
early warning, treatment can start earlier.
The company denies it is patenting the human gene itself, but it
is patenting an artificially created acid that isolates the gene.
The company says it has spent hundreds of millions of dollars
developing the technology and needs the patent to protect its
The US Supreme Court has denied the patent, ruling that a human
gene can not be owned by a company. In Australia the full bench of
the Federal Court last year ruled the research company could own
the patent. Even though a gene is naturally occurring, the Federal
Court decided the patent related to the development of a process
that can isolate the BRCA1 gene.
It was a controversial decision. Some experts in patent law
point out only an invention can be the subject of a patent, and
that genes extracted from the body aren't an invention.
Ethicists argue it is the start of the commercialization of the
human body where companies own parts of the body that need fixing.
Some cancer experts are concerned granting the patent opens the
door to 'gene monopolies' by big corporations and patients
will end up having to pay huge amounts for treatment because of
Lawyers appealing to High Court against the patent argue the
process of isolating the gene from the human body does not
constitute a form of manufacturing something - an invention that
could be patented - as the gene they are isolating is not invented,
it occurs in nature, and therefore can't be patented.
It's one of those vexed questions that can arise in law. The
High Court will hear arguments from both sides when it hears the
appeal against the Federal Court ruling in April. A decision
isn't expected until later this year.
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