Myriad gene patenting case in the USA and Australia

US court denies rehearing

In the latest twist in the Myriad gene patenting case, on 14 September 2011 the US Federal Circuit denied both parties’ requests for rehearing.

The three-judge panel had previously overturned a controversial lower court decision that had found that Myriad’s patents on the breast cancer genes, BRCA1 and BRCA2, were invalid because genes are unpatentable products of nature. The Court of Appeals for the Federal Circuit decided in July this year that DNA isolated from the body was patentable because it was “markedly different” in its chemical structure from DNA that exists in chromosomes in the human body. However, the court also found that Myriad’s claims to a process of analysing whether a patient’s genes had mutations that raised the risk of cancer were not patentable because they involved only “patent-ineligible abstract mental steps.”

The parties now have 90 days to file a petition asking for Supreme Court review.

Gene patents in Australia

In Australia, there is a corresponding case before the Federal Court (Cancer Voices Australia & Anor v Myriad Genetics Inc & Ors), which is set down for hearing in February 2012.

However, in the meantime, the Australian Federal Government is considering whether to ban the patenting of genes and other biological materials, with a Senate Committee report expected later this month.

We will keep you updated on developments in this space.

Contact: If you have any specific enquiries about the Myriad gene patenting case in the USA and Australia, please contact Debra Tulloch.