Constraints on Gene Patent Protection Fuel Secrecy Concerns: A Qualitative Study

Journal of Law and the Biosciences, 2017

Posted: 20 Nov 2017

See all articles by Christi J. Guerrini

Christi J. Guerrini

Baylor College of Medicine; University of Houston Law Center Intellectual Property and Information Law Institute

Amy L. McGuire

Baylor College of Medicine

Mary Anderlik Majumder

Center for Medical Ethics and Health Policy, Baylor College of Medicine

Juli Bollinger

Johns Hopkins University

Paul Rowan

Independent

Date Written: November 16, 2017

Abstract

Concern is mounting that innovators are responding to recent changes in patent eligibility by increasingly choosing to protect their discoveries as trade secrets. Due to the clandestine nature of trade secrets, it is impossible to quantify the extent to which innovators actually elect to protect their inventions as trade secrets rather than patents. Nevertheless, interest in each strategy may be gauged through qualitative means. We conducted semi-structured interviews of legal and scientific experts (n = 30) to understand the effect of recent patent eligibility changes on interest in patenting and trade secrecy of genetic innovations. Interview data indicate that secrecy may have increased in strategic appeal relative to patent protection in some areas of genetic innovation, although the actual election of secrecy strategies is often limited as a practical matter. The data also suggest that the burden of navigating the new intellectual property landscape may be falling disproportionately on those who translate gene-based discoveries into clinical applications. Some interviewees expressed concern about the normative implications of secrecy on advancements in and access to genetic medicine. Our findings are potentially relevant to policy proposals intended to restore some of the legal protection that was lost as a result of recent changes to patent eligibility, including amending the federal patent statute and expanding regulatory exclusivities for some genetic technologies.

Keywords: patent law, qualitative, diagnostics, genetics, innovation, Section 101, patentable subject matter

Suggested Citation

Guerrini, Christi J. and McGuire, Amy L. and Majumder, Mary Anderlik and Bollinger, Juli and Rowan, Paul, Constraints on Gene Patent Protection Fuel Secrecy Concerns: A Qualitative Study (November 16, 2017). Journal of Law and the Biosciences, 2017. Available at SSRN: https://ssrn.com/abstract=3072628

Christi J. Guerrini (Contact Author)

Baylor College of Medicine ( email )

One Baylor Plaza
Apt 510
Houston, TX TX - Texas 77057
United States

HOME PAGE: http://https://www.bcm.edu/people/view/christi-guerrini-j-d/b1e79844-9aa9-11e4-907f-005056b104be

University of Houston Law Center Intellectual Property and Information Law Institute ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

Amy L. McGuire

Baylor College of Medicine ( email )

One Baylor Plaza
Apt 510
Houston, TX TX - Texas 77030
United States

Mary Anderlik Majumder

Center for Medical Ethics and Health Policy, Baylor College of Medicine ( email )

One Baylor Plaza
Houston, TX TX - Texas 77030
United States

Juli Bollinger

Johns Hopkins University ( email )

Baltimore, MD 20036-1984
United States

Paul Rowan

Independent ( email )

No Address Available

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