Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65: Should Gene Patent Monopolies Trump Public Health?

Abstract

At a time when the double mastectomy of Angelina Jolie has highlighted the importance of genetic testing for breast cancer, the Federal Court’s decision in Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65 has clarified that, for now at least, isolated DNA and RNA can constitute a patentable invention under s 18(1)(a) of the Patents Act 1990 (Cth). This is a significant decision for companies seeking to secure patents over DNA and genetic material, whether isolated or not. This column critically examines this case in the context of parallel legal action currently underway in the United States. It also reviews it with regard to political and bureaucratic inaction in Australia (much of which relies upon an overly restrictive interpretation of the High Court decision in National Research Development Corp v Commissioner of Patents (1959) 102 CLR 252) that has compromised the setting of cost-effective public health limits on patentable subject matter concerning the human genome.

Keywords: australia, genes, patents, genetic information, BRCA, myriad, cancer, human rights

JEL Classification: K19, K32, K33