Impact of Gene Patents on Diagnostic Testing: A New Patent Landscaping Method Applied to Spinocerebellar Ataxia

19(11) European Journal of Human Genetics (EJHG), 2011, 1114–1121

Posted: 26 Dec 2015 Last revised: 4 Jan 2016

See all articles by Nele Berthels

Nele Berthels

Independent

Gert Matthijs

Leuven University - Center for Human Genetics

Geertrui Van Overwalle

KU Leuven - Centre for IT & IP Law (CiTiP)

Date Written: March 1, 2011

Abstract

Recent reports in Europe and the US raise concern about the potential negative impact of gene patents on the freedom-to-operate of diagnosticians and on the access of patients to genetic diagnostic services. Patents, historically seen as legal instruments to trigger innovation, could cause undesired side effects in the public health domain. Clear empirical evidence on the alleged hindering effect of gene patents is still scarce. We therefore developed a patent categorization method to determine which gene patents could indeed be problematic. The method is applied to patents relevant for genetic testing of spinocerebellar ataxia (SCA). The SCA test is probably the most widely used DNA test in (adult) neurology, as well as one of the most challenging due to the heterogeneity of the disease. Typically tested as a gene panel covering the 5 common SCA subtypes, we show that the patenting of SCA genes and testing methods and the associated licensing conditions could have far-reaching consequences on legitimate access to this gene panel. Moreover, with genetic testing being increasingly standardized, simply ignoring patents is unlikely to hold out indefinitely. This paper wants to differentiate among so-called “gene patents” by lifting out the truly problematic ones. In doing so, awareness is raised among all stakeholders in the genetic diagnostics field who are not necessarily familiar with the ins and outs of patenting and licensing.

Keywords: gene patents, genetic testing, patent licensing, spinocerebellar ataxia

JEL Classification: D23, D45, H 41, H51, I18, K11, L14, L 65, O31, O32, O34

Suggested Citation

Berthels, Nele and Matthijs, Gert and Van Overwalle, Geertrui, Impact of Gene Patents on Diagnostic Testing: A New Patent Landscaping Method Applied to Spinocerebellar Ataxia (March 1, 2011). 19(11) European Journal of Human Genetics (EJHG), 2011, 1114–1121. Available at SSRN: https://ssrn.com/abstract=2707978

Nele Berthels

Independent ( email )

No Address Available

Gert Matthijs

Leuven University - Center for Human Genetics ( email )

Herestraat 49
Leuven, B-3000
Belgium

Geertrui Van Overwalle (Contact Author)

KU Leuven - Centre for IT & IP Law (CiTiP) ( email )

Sint-Michielsstraat 6 box 3443
Leuven, 3000
Belgium

HOME PAGE: https://www.law.kuleuven.be/citip/en/staff/00015469

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