Cancer groups applaud patent battle

A decision that private companies can control human genes will be appealed in the Federal Court.

Cancer groups have applauded the move, and say a win is vital to protect patient access to new tests and treatments.

Law firm Maurice Blackburn has lodged documents to appeal a decision last month by Federal Court judge John Nicholas that upheld a patent on the so-called breast cancer gene - mutations in a gene known as BRCA1.

Cancer Council head Ian Olver said it was important to have the decision clarified.

''Everyone will be watching this,'' he said. ''If the appeal is lost, it's very clear we will need to use the political process to change the legislation to ensure it is in the best interest of patients,'' he said.

Maurice Blackburn principal Rebecca Gilsenan said she believed the firm had a good basis on which to appeal the decision. She said Justice Nicholas had erred in his decision that isolating the gene outside the body should be considered a form of new manufacture.

''Our appeal is directed towards saying that having held that the gene is not relevantly different inside or outside the body, it was then an error to say that when it is outside the body it constitutes an artificial state of affairs that is therefore patentable subject matter,'' she said.

In his decision, Justice Nicholas said it would be a mistake to assume that just because the gene mutation was a part of the human body, isolating it was not a form of new manufacture.

He said a High Court decision had given a very broad definition of what ''new manufacture'' meant, and there was no legal basis to demand the product be substantially different from something that occurred in nature.

Ms Gilsenan said the appeal, expected to be heard on April 17, would also challenge his broad interpretation of the High Court case.

Those in favour of the patents say they are vital in ensuring companies receive a return on investments in genetic research, and will promote more medical research.

Cancer groups argue the patents can stop patients seeking second opinions on tests, and impede research by not allowing open use of the genetic mutations.

Yvonne D'Arcy, the applicant in the case and a grandmother who survived breast cancer twice and ovarian cancer once, said she would not give up the fight. ''We need to continue for future generations of people who at some point in their life may need treatment for cancers and other diseases,'' she said.

This story Cancer groups applaud patent battle first appeared on The Sydney Morning Herald.