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 work.
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 gene 'ownership'.
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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