Myriad Choices: University Patents Under the Sun
42(2) Journal of Law & Education 313 (2013)
14 Pages Posted: 16 Jan 2013 Last revised: 27 Mar 2013
Date Written: January 2, 2013
How universities handle potentially patentable discoveries made by their faculty reflects important policy decisions that affect the greater public. The University of Utah’s decision to patent and then license exclusively to Myriad Genetics isolated human genes with positive predictive value for cancer provides an important example of the tensions that can arise when non-profit altruism confronts the legal and for-profit norms of commercial bioscience. This article examines the ongoing litigation over the Utah/Myriad patents – now before the U.S. Supreme Court for a second time – from the lens of the greater university innovation environment, a traditionally public space increasingly the focus of policymaker attention in discussions over how best to further commercialization and entrepreneurialism objectives in a struggling economy.
While many commentators, as well as Federal Circuit judges, dismiss as irrelevant the public impact of university patenting and licensing decisions on the question of patent eligibility, I argue, as a matter of higher education and innovation policy, for a renewed focus on the position of universities in the public sphere and the extent to which university patenting and licensing decisions in the health sciences further, and do not frustrate, the public good. Whether human genes should be eligible for patent protection, and whether universities should continue to seek such rights if the U.S. Supreme Court holds that they are, will propel policy decisions for all universities active in biotech research. But just because prevailing law allows certain forms of patent activity does not mean universities must engage in it. Amidst calls for increased commercialization and entrepreneurialism by universities, we should continue to demand a public-serving approach from universities as the social and scientific catalysts for potentially life-saving discoveries of wide application.
Keywords: universities, patents, Myriad, technology transfer, higher education, intellectual property, public good, academic capitalism
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