Isolated genes patentable: Cancer Voices Australia v Myriad Genetics

BREAKING NEWS: Full Federal Court finds that isolated genetic material is patentable subject matter as an artificially created state of affairs.

In a highly anticipated and important decision, the Full Federal Court today dismissed an appeal by Cancer Voices Australia from a decision of Justice Nicholas.

Cancer Voices Australia claimed that isolated genetic material is not patentable material. This claim was based on the argument that a patentable invention must consist of an “artificially created state of affairs” (as required by the law of patents). Cancer Voices claimed that the patent held by Myriad Genetics for the isolated BRCA1 Gene, which is used for breast cancer detection, was not materially different to the same gene which occurs naturally in the human body.

Early last year, Justice Nicholas in the Federal Court decided that Myriad’s invention was patentable material because the gene does not occur naturally in an isolated form outside the human cell, and thus the isolated gene was an artificially created state of affairs. (See our earlier post on that decision here.)

Today’s decision affirms Justice Nicholas’ decision. Stay tuned for our analysis of the reasons for the Full Court’s decision.