The European Patent Office (EPO) has upheld a patent relating to the testing of Ashkenazi-Jewish women for a particular mutation in BRCA2.

The mutation — 6974delT, the focus of the patent originally filed by the Utah based biotech firm Myriad Genetics — occurs frequently in the Ashkenazi-Jewish population, making the claim in terms of patent law an inventive, novel and industrially applicable one. Gert Matthijs, Chair of the European Society for Human Genetics (ESHG) Patenting and Licensing committee said, “We understand the EPO had to decide about this case within the constraints of the patent law ... nevertheless we still believe that there is something fundamentally wrong if one ethnic group can be singled out by patenting” (http://www.mydna.com, 5 July 2005).

One in 100 Ashkenazi-Jewish women has this mutation, which gives her a 65–70% chance of developing breast cancer. Essentially, when a woman needs to be tested for the 6974delT mutation, this will be free unless she is known to be Ashkenazi-Jewish. “What it means in practice is that genetic centres that do not have licences for this test — or where the healthcare systems cannot afford to pay for it — may be forced to deny it to Ashkenazi–Jewish women”' said Gert-Jan van Ommen, from Leiden University Medical Centre (http://www.thescientist.com, 1st July 2005.)

The EPO has granted patents on hundreds of genes, but few patent holders, unlike the holders of this BRCA2 patent, have requested licence fees from public health centres in Europe. As Mary Rice from the ESHG concludes, this is now “a moral not a legal issue” and opponents will have to mount further challenges based on this fact (http://www.nature.com, 7th July 2005).