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"Through new technologies, all plants, animals, micro-organisms and human beings, down to their individual genes",[1] are potential resources to be utilised or exploited.

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"Through new technologies, all plants, animals, micro-organisms and human beings, down to their individual genes",1 are potential resources to be utilised or exploited. Many people and organisations are actively exploring these resources. This essay will examine the implications of patents applying to genes and the advantages and disadvantages of gene patenting, and present a possible solution. "Patent laws vary according to jurisdiction, but most share a number of key features. On award of a patent, the holder is given the exclusive right to use that invention for up to twenty years in exchange for details of the invention being on the public register, ensuring eventual spreading of all the knowledge. Any other person wishing to use that invention can only do so legally with the permission of the patent holder, usually on some payment of royalties or licence fees."2 It is only recently that products from humans and/or human genetic materials have been accepted suitable for patent.3 "Before a patent can be granted the invention must satisfy a number of criteria: it must not be obvious or a natural phenomenon and it must be both new and useful."4 Although products of nature cannot be patented [O'Reilley v Morse5], natural products can if they are in some way different from the initial source. ...read more.


Myriad Genetics, an American company based in Salt Lake City, owns the patents on two genes, BRCA1 and BRCA2 that are believed to increase the risk of breast cancer developing. The patents mean that when Myriad begins operating commercially in Australia, women with breast cancer, or a family history of the disease, could be forced to pay thousands of dollars for genetic testing that they can now receive free in public hospitals. In the United States, Myriad charges $US2600 ($A5120) to test for mutations on the genes. "The head of medical genetics at the University of Newcastle, Rodney Scott, said that the increasing commercialisation of genetic information could mean that only the rich would be able to afford tests of this kind."13 Companies will sometimes invest money in non-profit organizations for research, the funding company can then patent the gene; this is an advantage for the company that funds the research as they receive credit and returns on their investment. Although, often public funding is used, so it is not necessary for other private funding. It is a disadvantage for society with these companies funding these organisations as it prevents these genes from being scientifically advanced because it limits who can research the gene without paying patents and will be discussed further. ...read more.


If this trend continues, there are problems with loss of control over a humans cells or genes, and also whether or not it constitutes a human rights abuse. Ultimately, the cells and DNA of a body constructs what a person is, the description of a person. If the current patent laws were to be changed so that human materials or human genetic material cannot be patented, like a general product from nature, it would decrease the funding from private investors, but funding would still be available from the public, which is still a large portion of funding. 1 P. Commandeur (1994) "Symposium: Patents, Genes and Butterflies" Biotechnology and Development Monitor No. 21 pp 3-4 2 http://www.law.ecel.uwa.edu.au/elawjournal/Volume%201/Articles%20Vol_1/biopiracy.pdf 3 ibid 4 J.D. Isaacs (1998) "Gene Patenting: The current state of DNA patenting and the stance of those shaping the field." p 1-2 (http://www.cs.dartmouth.edu/~jisaaces/patent.html) 5 O'Reilley v Morse 15 How 62 112-121 (1854) 6 Hartranft v Wiegmann 121 U.S. 609, 615 (1887) 7 Diamond v Chakrabarty 447 U.S. 303 (1980) 8 Such a cell line is one that, under laboratory conditions, will grow and multiply indefinitely. 9 Moore v Regents of the University of California 793 P.2d 479 Cal. (1990) 10 Op cit Williams Jones p 40 11 Op cit Moore v Regents of the University of California 12 Op cit Williams-Jones pp 11-13 13 http://www.nswccl.org.au/issues/breast_cancer.php 14 ibid ...read more.

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