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Australian Court: You Can Patent Genes

Update Date: Feb 15, 2013 12:01 PM EST

An Australian court ruled today that it is possible to patent genes.

The landmark decision was ruled today about the Australian patent 686004. American biotech company Myriad Genetics owns the patent for the BRCA1 gene and, in Australia and New Zealand, Genetic Technologies has exclusive rights for testing, according to CNN.

The United States' Supreme Court will rule on that same gene, and BRCA2, later this year. The American Civil Liberties Union (ACLU) is arguing to the court that, because genes are the work of nature, they cannot be patented. The ACLU also argues that patenting the gene would be a violation of the First Amendment and freedom of speech.

According to Reuters, the lawsuit in Australia was brought by cancer support organizations, the consumer group Cancer Voices and a Brisbane, Australia resident named Yvonne D'Arcy.

The judge, Justice John Nicholas, ruled that DNA and RNA, as it naturally appears in the body, cannot be subject to patents. However, because a gene needs to be isolated in order for testing, and because that isolation requires human hands, that process can be patented.

According to Global Post, Yvonne D'Arcy left the courtroom in tears, saying that she had been involved with the case for the benefit of future generations. Cancer Voices Australia also expressed its disappointment. "We think that is it very important that information about people's genes (and) genetic makeup be freely available to researchers, not only in Australia, but around the world," John Stubbs, speaking on behalf of the organization, said.

Currently, Myriad Technologies does not enforce its patent. It did in 2008, but stepped back after a vehement public backlash. Because of the court's decision, cancer groups worry that current research on the gene could be halted, if the laboratory did not receive permission from the company or pay for the rights.

Myriad Genetics says on its website that an estimated 7 percent of breast cancer cases and 15 percent of ovarian cancer cases are linked to the patented gene. People who have mutations of the gene have an 87 percent and 44 percent chance of developing breast cancer and ovarian cancer, respectively.

Cancer Voices is expected to appeal the decision.

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