Patents as Data Aggregators in Personalized Medicine

24 Pages Posted: 23 Apr 2015 Last revised: 21 Jun 2016

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: April 22, 2015

Abstract

The role of patents in personalized medicine is problematic, as the potential market for tailored treatments may be too small for the patent incentive to be effective. However, in certain instances patent exclusivity may serve less as an incentive to invest in new inventions than it might to serve as an aggregator for certain types of ancillary information that will be critical to personalized diagnosis and treatments. In this essay I look at the effect of patents on the collection and application of such non-patentable data related to genetic variation. My vehicle for examining such effects is the testing service for genetic predisposition to cancer which was the subject of the recent Supreme Court decision in Association for Molecular Pathology v. Myriad. The Myriad patents appear to have given rise to detailed databases of genetic variations that are now held as trade secrets. The welfare effects from such data aggregation, both positive and negative, have gone largely unexplored and undiscussed in the arguments over DNA patenting, and suggest a previously unappreciated justification for patenting in some instances.

Keywords: patent, VUS, Myriad, intellectual property, trade secret, database, personalized medicine, genomics

JEL Classification: O31, O32, O33, O34, L65

Suggested Citation

Burk, Dan L., Patents as Data Aggregators in Personalized Medicine (April 22, 2015). Boston University Journal of Science and Technology Law, Vol. 21, No. 2, 2015; UC Irvine School of Law Research Paper No. 2015-47. Available at SSRN: https://ssrn.com/abstract=2597525

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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