Cancer Gene Dispute to be Heard in High Court this Month

This month the High Court will hear arguments over whether the dystopian-sounding Myriad Genetics should be able to patent the BRCA1 “breast cancer” gene it isolated. Simply put, the isolated gene is capable of being used to find mutated BRCA1 proteins in patients, which indicates an increased risk of breast cancer.

Angelina Jolie-Pitt has written two conviction-filled pieces on the preventative surgeries she underwent after this gene and its twin assisted in finding she had a very high risk of breast and ovarian cancer.

When the case was heard in our Federal Court and US Supreme Court, the blogosphere’s focus was on how Jolie could afford the test but if the gene remained under patent most people could not afford the test and it would hinder scientific experimentation. This is not necessarily true, but idealists would argue that allowing the patent is against public policy. Science should always be used to eliminate class rather than propagate class differences, especially on medical issues.

The isolated gene is currently patented under Australian Patent No. 686004. In contrast, the US Supreme Court held the gene wasn’t patentable, but the US congress has set down a different legal framework on the issue.

It is curious that the High Court decided to reconsider this case, which will be known as D’Arcy v Myriad Genetics. Last year five judges of the Federal Court unanimously held that the patent was lawful.

This suggests that the High Court is only considering an appeal because of the strong public interest in the case, or to clarify why the Australian position is different from the US decision. Perhaps they agree with the Federal Court outcome but wish to correct their reasoning toward that outcome.

Conversely, the High Court may disagree with the Federal Court’s decision. Chief Justice French made Myriad Genetic’s barrister jump through a few hoops to explain why the Federal Court was correct, before briefly concluding that the High Court would hear an appeal.

The debate is one of science, philosophy and law, not an immediately practical debate. The patent expires in August. The High Court’s judgment will probably be delivered after the patent has expired. Furthermore, section 119C of the Patents Act 1990 (Cth) allows most useful types of experimentation on the BRCA1 gene even though it is patented. Yet, the High Court’s application of legal rules to this issue could set a strong precedent for the future.

The case will be heard in the High Court building during April. It should be scheduled soon on the High Court website. For more information search for the High Court transcript: D’Arcy v Myriad Genetics Inc and Anor [2015] HCATrans 12 (13 February 2015).