Individualism, Pluralism and Openness in Patent Law - Promoting Access Through Exclusion

Abstract:     
Recently, a shock wave swept through the biotechnology community when Judge Robert W. Sweet of the District Court for the Southern District of New York decided to deny patent protection for isolated human genes and associated diagnostic methods. The case related to genetic tests for familial breast and ovarian cancer developed by Myriad Genetics. Although the decision has been appealed and may well be reversed in light of the Bilski case, many of the concerns relating to the impact of gene patenting which are extensively discussed in this case, will continue to exist. The Myriad case is an exponent of a systemic problem. The disputed issues in the Myriad case point to the uneasy relationship between human genomic science and intellectual property. The debate particularly revolves around the alleged hindering effect of single, blocking patents, on the one hand, and patent thickets, on the other hand, in the area of genetics.

Inspired by the ongoing exchange of ideas on distinct modes of ownership and their respective impact on exclusivity and competition, the present paper is an attempt to analyse the current problems in gene patenting through the lens of individual, multiple and collaborative ownership. The objective of the present chapter is to systematize the relation between modes of ownership, modes of licensing and their effect on access.

Number of Pages in PDF File: 40

Keywords: Patents, Individual and multiple ownership, DNA, Genes, Myriad, Bilski

JEL Classification: I18, K11, O32, O34, H51

working papers series