Melissa Parke (Fremantle, Australian Labor Party) Share this | Link to this | Hansard source

Last year, the Melbourne company Genetic Technologies ordered Australian hospital laboratories to stop testing for breast cancer as it claimed such testing infringed the licence it had obtained from the US company Myriad in relation to the breast cancer gene. The company only backed down from its threats to Australian hospitals as a result of the public outcry.

Last month, it was reported in the New York Times that a woman seeking a second opinion on a positive genetic test for ovarian cancer, Ms Genae Girard, could not get that opinion because there is only one test, owned by only one company, Myriad Genetics, which owns the rights to the relevant tests for ovarian and breast cancer in the United States. Myriad charges US$3,000 per test. With the support of the American council of civil liberties and women’s health groups, Ms Girard has launched a lawsuit challenging the US patents office decision to grant a patent on the breast and ovarian cancer genes to Myriad, a decision that has prevented the development of further, possibly better and less expensive diagnostic methods of tests.

These cases show that commercial control or private ownership of human genes may be blocking important health research and development while making scientific innovation, especially in health care, a matter of corporate profit rather than a matter of necessary and common social endeavour. It is no surprise, then, that this issue is beginning to get a lot of attention in the US, Europe and now Australia.

The Senate Community Affairs References Committee is currently undertaking an inquiry into gene patents. This builds upon a review by the Australian Law Reform Commission in 2004 which found:

… overly broad gene patents and aggressive licensing practices might stifle further research and cause problems for governments in providing access to high quality and cost-effective healthcare.

In the view of Dr Luigi Palombi, from the Centre for Governance of Knowledge and Development at the ANU and author of Gene Cartels: Biotech Patents in the Age of Free Trade, ‘patents can be and are being used to suppress competition and innovation’. The simple question is: why are patents being granted over human genes when genes are not inventions or processes but natural phenomena? Gene patents represent a creeping and inappropriate privatisation of knowledge about the human body. We are licensing companies to control the very essence of our commonwealth—the genetic code that belongs to each and all of us. Professor Guy Maddern of the Royal Australasian College of Surgeons opposes the granting of patents over human genes, stating:

It is not an invention worthy of a patent but a discovery … no worthier of a patent than a recently discovered species of animal or plant.

Inventions must also be new, novel and industrially applicable. In its submission to the Senate inquiry, the New South Wales government submitted that patents on gene sequences should not be granted because:

The level of inventiveness in the acquisition of genetic information, most notably sequence data, is increasingly small and the potential negative impact of inappropriately awarded patents increasingly large. The negative impact of such patents is exemplified by those awarded for familial breast cancer genes.

Those who claim that patents are necessary to encourage investment in research should remember that the most significant discoveries in research and medical history were not achieved in pursuit of a patent—for instance, Pasteur’s work with bacteria and vaccines, Lister’s work on sterilisation, Fleming’s discovery of penicillin, Florey’s development of penicillin as a medicine and Watson and Crick’s development model of the molecular structure of DNA.

Furthermore, much of the medical research and innovation leading to the grant of a patent is publicly funded. As noted by the Country Women’s Association of New South Wales in its submission to the Senate inquiry:

While the BRCA—

or breast cancer—

genes are now ‘private property’, their initial discovery was due to the efforts of publicly funded scientists collaborating on an international basis.

Similarly, Dr Palombi has noted that, while the company Bionomics was granted a wide-ranging patent over the epilepsy gene, most of the research leading to the patent application was in fact carried out in publicly funded institutions such as the University of Melbourne and the University of Adelaide’s Department of Paediatrics at the Women’s and Children’s Hospital.

Professor Ian Frazer, the inventor of the cervical cancer vaccine, has joined other cancer researchers in calling for a revision of patent laws, stating that researchers need to be able to proceed with their work without having to consult the companies whose patents the work might infringe. Other groups opposed to the granting of gene patents include the Breast Cancer Foundation of Australia, the Royal Australian College of Pathologists, the Human Genetics Society of Australia and the Australian Medical Association.

Currently, more than 20 per cent of human genes are claimed as intellectual property. It will not be long before knowledge about every part of the human body is controlled by corporations. I am one of a growing number of people who find this alarming and I am grateful to Dr Luigi Palombi and former Commonwealth public servant Anna George for alerting me to this issue, which has serious implications for Australian medical research, innovation and costs. I look forward to the recommendations of the Senate inquiry, which is due to report at the end of this sitting year.

Question agreed to.