Though not legally binding in the US, the decision of the Australian court hearing the gene patent case similar to Myriad's might intellectually influence the US Supreme Court when it hears Myriad's appeal, according to Genomics Law Report's John Conley. Earlier this month, several plaintiffs in Sydney sued Myriad and Australian company Genetic Technologies Limited — which is licensed to perform Myriad's gene tests in Australia — on the basis that the BRCA1 and BRCA2 genes are a natural product and, therefore, not patentable. "In a technical sense, the case will have no direct effects outside of Australia," Conley says. "The general principle of international patent law is 'non-extraterritoriality' — a jaw-breaker that means simply that a patent is enforceable only within the boundaries of the country that issues it." But the Australian court system is "well-regarded," Conley adds, and its decision could intellectually influence other courts. "So the new Australian case will be, at a minimum, a chance for that country to engage in a public debate over the wisdom and legality of patenting genes," Conley says. "But in the long term it could serve to undercut the practical value of genes patents everywhere."
All Eyes on Australia
Jun 21, 2010