Trend in Human Gene Patent Litigation

Science 322:198-99 (2008)

Posted: 21 Mar 2015

See all articles by Christopher M. Holman

Christopher M. Holman

University of Missouri - Kansas City School of Law

Date Written: 2008

Abstract

Previous studies have attempted to count the number of gene patents, or the number of human gene patents, or to gauge the effect of human gene patents on research or diagnostic testing. However, empirical research on the judicial enforcement of human gene patents has been lacking. To address this gap, I conducted a study to identify all instances in which a human gene patent was asserted in an infringement lawsuit and to track the results of these litigations. A total of 31 human gene patent litigations were identified, dating back to 1987. All 31 involved an alleged infringer engaged in substantial commercial activities focused specifically on the single gene that is the subject of the asserted patent, the antithesis of a patent thicket scenario. Sixteen of the litigations were brought in the context of therapeutic proteins, with the patents serving a function analogous to that of drug patents in the traditional pharmaceutical industry. Litigation outcome tends to vary depending on the nature of the alleged infringement. Six of the 16 therapeutic protein cases were litigated to a final, unappealable judicial decision (a seventh is currently on appeal), with the patentee prevailing in two cases and losing in the other four. In contrast, the litigations that did not involve a therapeutic protein all either settled or were dismissed before the case could be appealed to a higher court. The results of this study provide little empirical support for legislative part of the patenting of genes are DNA.

Keywords: patent policy, patents, gene patents, patent litigation

Suggested Citation

Holman, Christopher M., Trend in Human Gene Patent Litigation (2008). Science 322:198-99 (2008), Available at SSRN: https://ssrn.com/abstract=2581221

Christopher M. Holman (Contact Author)

University of Missouri - Kansas City School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
327
PlumX Metrics