Illustration: Rocco Fazzari

Remember Pandora's box? In the future, when the seaside mansions have sunk and my bit of Redfern grunge is absolute waterfront, our children's children will look back gobsmacked by the evils we so blithely loosed; nuclear war, climate change, gene meddling.

The Murdochs and Bransons will have vanished with their palaces beneath tides they helped create but two of the lowly will be revered forever; an organic farmer from Kojanup, Western Australia, and a Brisbane breast cancer survivor.

What do Steve Marsh and Yvonne D'Arcy have in common? Only that both are fighting barehanded to stuff the gene genies back in their box.

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It is all very Promethean; a story of money and power and the urge to possess life itself. When Jonas Salk invented the polio vaccine an interviewer asked him about patenting it. Salk laughed. “Could you patent the sun?”

Few these days have Salk's wisdom. Both Monsanto and Myriad Genetics believe they own the essential stuff of life – and this is what Marsh and D'Arcy are testing. Their two quite separate cases will help shape not just state or country, but the global future of food and health. Small people. Big stuff.

Pivotal to the legal issue is the distinction between art and nature, the made and the found. The made is owned, and can therefore be patented. The found is given, and cannot.

It's no semantic trifle. It's a battle for the commons, as important – perhaps more important – as the enclosure battles of manorial England. Like those enclosures, it is a war waged by the rich against the poor. But now the poor are starting to fight back, in the courts.

Marsh was an organic farmer growing wheat, oats, rye, canola and fat lambs in Kojanup. I say "was", because when in late 2010 his crop was contaminated by modified canola genes from the next-door farm of his childhood friend Michael Baxter, Marsh lost his organic certification. The GM seeds had blown in. He lost 70 per cent of his livelihood. Regaining certification will take years. He had no choice but to sue his mate.

The court case is imminent but the law remains murky. Australian GM farmers are not obliged to inform their neighbours, and remedies are unclear. Yet organic certification rightly takes a zero-tolerance approach since there's virtually no longitudinal research on the safety of GM food and growing evidence of harm.

A letter from ex-army plant pathologist Emeritus Professor Don Huber to the US Agriculture Secretary, Tom Vilsak, in January last year warned of a “previously unknown” pathogen, apparently a micro fungus, pervading Roundup Ready crops. Huber suspected this bug of causing “epidemic” reproductive failure in swine, cattle and horses, with abortion rates up to 45 per cent and recommended an “immediate moratorium”.

Yet, here, governments and farming federations insist on treating these as simple neighbourhood disputes to be sorted over the back fence.

This is moronic, since the stakes are so much higher. Marsh is supported by various green groups, including the Safe Food Foundation, with legal firm Slater & Gordon working pro bono, but it's still costly. The respondent, Baxter, is supported by the WA Pastoralists and Graziers Association. Monsanto denies contributing (though some dispute this).

Maybe Marsh should be thankful Monsanto isn't suing him for patent infringement, as it sued Saskatchewan farmer Percy Schmeiser. Schmeiser was a seed saver. GM contamination set his breeding program back decades, but Monsanto regarded it as a theft and sued him for $37 a hectare. Schmeiser eventually won, but not without a 10-year trail to the Supreme Court.

Patent law is meant to protect inventions, not discoveries. Monsanto's RR gene is clearly synthetic: the argument is about the market control this allows (patents are not supposed to create monopolies), the behaviours used to protect it (allegedly including threats and intimidation) and the unknown effects of genetically modified organisms in the food chain (you can't patent anything harmful).

D'Arcy's case, opening on Monday in the Federal Court in Sydney, takes a different tack. Here the argument is about Myriad's right to own a gene – the "breast cancer gene" BRCA1 – that has been extracted from the human body but not otherwise modified.

But how can a private company have intellectual property rights over something that, for better or worse, inhabits every cell in your body? Myriad argues, predictably, that just isolating the gene renders it “markedly different”. Professor Peter Cashman of the University of Sydney's law school argues the other way (as does, now, the US government).

If Myriad wins, it can continue to monopolise not the therapy – oh, no – but the test, for which it charges $US3200 ($3000). (The American Civil Liberties Union's challenge to private sequestration of human genes opens in the US Supreme Court tomorrow.)

Myriad is not alone. About 10,000 genes, more than a third of the human genome, are now privately owned, including genes for muscular dystrophy and polycystic kidney disease. So the implications of this test case, which will start to determine the legality of "owning" genes that were found, not made, are immense.

It's more than just money. With last year's creation of the first wholly synthetic life form, Craig Venter's replicating single-cell microbe, the capacity to own new life – the Frankenstein faculty – becomes quarantined by the very same corporates, biotechs and pharmas that have repeatedly proved themselves oblivious to the good of the species.

So where's government? Out to lunch, basically. The Gene Technology Act 2000 should have established a clear framework for farmers' GM liabilities but didn't, leaving them to rely on common law torts of negligence and nuisance. This means cases such as Marsh v Baxter will cost millions and destroy communities.

As to the human genome, Senator Bill Heffernan introduced a Patent Amendment Bill last September that would prohibit all patenting of human genes. But with every sandstone university and the Academy of Science opposing it – uh, because it might harm business! – the bill is bogged in indecision.

And all the while the genies fly. Eat your heart out, Prometheus. This stuff makes Pandora look benign.

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