Malcolm Turnbull (Wentworth, Liberal Party, Shadow Minister for Communications and Broadband) Share this | Hansard source

I congratulate the member for Fremantle in bringing forward this motion tonight and thank the members from both sides, the members for Greenway and Page on the government side, and the members for Moore and Mallee on the opposition side, who have spoken in support of this motion. I too am very strongly in support of this motion. It is a very long time since I practiced in the patent area, and I do not claim to retain any particular knowledge or expertise of patent law, but my dim recollection is that a patent needed to be an invention, there needed to be novelty. I struggle to see, as indeed honourable members have struggled to see tonight, how the discovery or identification and isolation of something which is existing in nature can be regarded as an invention. It is something that is part of us. As so many people have said—as Ian Fraser in particular said, very eloquently not so long ago—by allowing patents of this kind to continue we are in effect allowing corporations to acquire a patent on ourselves and on a part of humanity.

The honourable member for Greenway referred to the controversy that attended the litigation over the breast cancer susceptibility genes 1 and 2—BRCA 1 and 2. This is worth dwelling on. It is a matter that really goes to the vital health and the ability of so many people to deal with and resist cancer, to have cancer treated. While the names of these genes would imply that they are largely related to cancers in women, in particular breast cancer and ovarian cancer, these genes are also associated with an increased risk of cancer in men. These genes are known as tumour suppressors, and mutations of them are found to be associated with an increased risk of cancer. These mutated genes are found in women of Ashkenazi Jewish descent, for example, more often than in the wider community. Naturally, if you have a chance of having these genes, whether by reason of family history or ethnic background, or both, you would wish to be tested.

Recently, as we know, an Australian company bought the rights to these genes from an American company, Myriad, and were proposing to stop laboratories in Australia from testing for these genes without payment. They backed off, thankfully and appropriately, because of public pressure; and in the United States the Federal Court has ruled against Myriad on the basis that I outlined at the very outset of my remarks—that this is not a patentable invention; this is a discovery, an isolation of something that is part of nature and it is not in the nature of an invention. A novel test for identifying the presence of these genes may well be patentable. A modification may well be patentable. A treatment may well be patentable. But the problem is the vice of allowing the patent to subsist in respect of these genes is that it discourages and locks up research on that gene. You can tie up a gene with one of these patents and nobody else will then have the ability, let alone the incentive, to find a treatment for it or a test for it. It is vital for the interests of all Australians—indeed, for all mankind—that we have the maximum amount of research being directed at cancer. And we know that the whole of cancer diagnosis is going to be based on the study of genes and their products. Targeting genes is critical. We need to have the greatest openness and encouragement for the widest possible research. For those reasons the motion should be supported. (Time expired)

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