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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-03-09 Daily Xml
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GENE PATENTS

The Hon. I.K. HUNTER (15:47): Today I rise to discuss the complex intellectual property debate surrounding gene patenting. This is an issue of great significance to the economy, to investors, to medical science and, most importantly, to the public and public health. Patents of human genes are most commonly held by research institutions, biotechnology and pharmaceutical companies and universities.

There are approximately 40,000 patents in the United States that relate to an estimated 2,000 human genes or about 10 per cent of the human genome. The patents cover the isolated genes, methods used to isolate genes and methods used to diagnose a disease based on an association between a gene and a disease. These patents can be very lucrative indeed. Patent holders make their money by charging researchers and clinicians access to their material.

In Australia, patents are administered by a government body, IP Australia, which operates under the Minister for Innovation, Industry, Science and Research. IP Australia grants patents for inventions. Current legislation defines isolated genetic material with known functions as inventions. This is the nub of the debate. Should we classify gene sequences as inventions, or should they be considered discoveries?

How can something that has always existed in nature be an invention? Patenting gene sequences seems to me to be akin to issuing a patent for gravity, water or coal. The legitimacy of gene patenting is now being questioned around the world. In March 2010, the US District Court for the Southern District of New York found several of the patent claims on the BRCA1 and BRCA2 breast cancer genes held by biotech giant, Myriad Genetics, to be invalid. Following this verdict, the US government's Justice Department issued the following statement:

The chemical structure of native human genes is a product of nature, and it is no less a product of nature when that structure is 'isolate' from its natural environment than are cotton fibres that have been separated from cotton seeds, or coal that has been extracted from the earth.

The Australian federal parliament is also grappling with this issue. In late November 2010 the Senate's Community Affairs References Committee Inquiry Into Gene Patenting was released. The investigation was prompted in 2008 after Melbourne-based Genetic Technologies demanded that eight public laboratories testing for breast cancer cease using their patents or risk legal action.

Genetic Technologies holds the licence for two genes associated with breast and ovarian cancer as well as a licence for the epilepsy gene. The Senate committee's report recommended that Australia's legislation be amended so that removing a human gene from its natural environment was not classified as an invention but a discovery. The Gillard government will respond to this report by the middle of this year, I am told. Two bills aimed at preventing patents being issued for human gene sequences have also been introduced in both houses of federal parliament and referred to the Legal and Constitutional Affairs Legislation Committee for consideration and report by 16 June 2011.

What is worth noting about this current debate is the cross-party support for the banning of gene patents. MPs taking a leading role in this debate include: Labor members Melissa Parkes, Michelle Rowland and Janelle Saffin; Liberal members Dr Mal Washer, Malcolm Turnbull, Bill Heffernan, John Forrest and Peter Dutton; all Australian Greens senators; and Independents Robert Oakeshott and Nick Xenophon. It is these MHRs and senators who are now facing attacks from pharmaceutical lobby groups.

With millions of dollars of profit at stake, it is not surprising that the holders of the gene patents are now actively campaigning against those calling for a ban on gene patenting. Their self-interest is all too obvious. Only last week, drug company lobby group Medicines Australia told a national newspaper that Australia faced 'devastating consequences', in their words, should we ban gene patenting, warning it would cost jobs and stall medical research by pharmaceutical companies. They claimed that removing the profit motive from gene exploration would discourage companies from continuing research into cancer, heart disease, multiple sclerosis, epilepsy, and the list goes on.

However, other scientists and academics argue that to patent a gene restricts further research and testing on that gene. Dr Graeme Suthers, a chair of the genetics advisory committee of the Royal College of Pathologists of Australasia, claims that his college has documented evidence of restrictions on scientific practice due to gene patents. I share these concerns. I would argue that the human genome is a common heritage of all humanity, which we all own collectively. To grant patents on genes to private companies which allow those companies to restrict access to these genes, in my view, is inherently wrong.

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