Human Rights Test Case for Gene Patents

Human rights test case for gene patents By Nyssa Skilton Medical and Technology Reporter

A lawsuit led by one of the largest civil rights groups in the United States is set to position the issue of human gene patents in the realm of human rights. Specialists say the outcome could guide Australia's largely untested position on gene patents, which has allowed the granting of an estimated 15,000 gene-related patents. The American Civil Liberties Union, with a number of organisations and individuals, has filed a lawsuit, alleging patents on two human genes associated with breast and ovarian cancer ''stifle research that could lead to cures and limit women's options regarding their medical care''. The lawsuit, filed in the US District Court for the Southern District of New York, is against the US Patent and Trademark Office and the BRCA genes' patent holders, biopharmaceutical company Myriad Genetics, and the University of Utah Research Foundation. It has been filed on behalf of scientific associations, women's health groups and individuals.

ANU College of Law senior lecturer Matthew Rimmer said the case was a new development in patent law, viewing the patent dispute through the lens of civil rights. ''The case raises very fundamental issues about the patentability of genes and the constitutionality of allowing patents in respect to biotechnology and the impact they have upon researchers and pathologists and patients,'' he said.

Traditionally, patent matters were battled out according to the standards of patent law. ''This action is quite different, because the American Civil Liberties Union wants to bring the matter firmly within the domain of constitutional law, freedom of speech, human rights, particularly rights associated to the right to health, but also women's rights.'' The genes in question, BRCA1 and BRCA2, became the centre of controversy last year when a DNA testing company ordered laboratories across Australia to stop testing on the genes. The test for gene mutations allows women with a family history of breast cancer to see if they have a higher risk of developing breast cancer.