Tomorrow I will appear before a Senate committee inquiring into gene patents, where I will emphasise a point that is lost in the complexities of the debate — that if we do not urgently rectify the flawed framework for gene patent law, we may compromise the development of revolutionary new cancer treatments.

Let’s hope the first recommendation from the Senate inquiry answers the core question that numerous other legal and policy reviews have danced around: should genes be patented? Answer: no, because they are not inventions.

And let’s hope the Senate recommends that government more formally involve public health stakeholders as it works towards legislative change, instead of enabling gene patent law to be dominated by commercial interests. Recommending open licences for non-commercial uses of patented genes would also help protect the public interest as we move towards a legislative solution.

Patent law was developed to protect the intellectual property rights of inventions and their inventors, not to enable the monopolisation of human biological materials — which exist in nature and are discovered, not invented.

But this is far more than a semantic debate. It reflects fundamental flaws in the Patents Act and risks to public health that were exposed last year when an Australian company, Genetic Technologies Limited (GTG), demanded public laboratories stop testing women for genetic risk of breast and ovarian cancers. GTG’s demands were legal under the current system, as the company “owns” the use of the BRCA1 and BRCA2 gene mutations that occur naturally in thousands of Australian women.

By apparently bowing to public pressure and withdrawing its demands, GTG has allowed these tests to remain available from public laboratories for the time being. So the immediate pressure to resolve the flaws in gene patenting law appears to be off.

Not so. While the BRCA1 and 2 problem remains unresolved, it is only the tip of the iceberg.

We are at the forefront of genetic technologies that will not only identify an individual’s cancer risk, but will also pick up early-stage tumours, indicate how aggressive an individual tumour is and which treatments will be most beneficial and minimise side effects. Cancer survival will improve significantly, along with quality of life for patients.

But if the gene sequences at the hub of this technology are locked up by monopolisation, we will be at serious risk of failing to realise the benefits.

Sure, encourage innovation by patenting the invention of the therapies that target the genetic products — but not the gene sequences themselves. They are not inventions and their monopolisation by individual commercial interests will discourage, not reward, excellence and competitiveness in health research.

With one in two Australians to be diagnosed with cancer by age 85, a lot of people will want assurance that our capacity to develop new treatments is not constrained by research and development cartels given legitimacy by a patent law framework formed in the 17th century.


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Peter Fray

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