Molecules and Conflict: Cancer, Patents, and Women's Health

31 Pages Posted: 1 Feb 2007  

Eileen M. Kane

Pennsylvania State University, Penn State Law

Abstract

Effective health care for women relies on a nexus of scientific, medical, and legal regimes. Intellectual property law offers incentives for creative accomplishments, and patent law, in particular, offers incentives for the development of medical innovations. This Article examines an intersection of women's health and the patent system. Breast cancer is the most common cancer in women and has been the focus of sustained basic and clinical scientific research. The Article presents an analysis of patent-related issues that have accompanied the development of leading compounds for the prevention, diagnosis, and treatment of breast cancer, in particular, Taxol, Tamoxifen, Herceptin, and the BRCA1 and BRCA2 genes. Collectively, these molecules track the intellectual development of the breast cancer research field. As a result, the patent issues range from those that arise in a mature pharmaceutical market to those that can only emerge from new advances in biotechnology.

Through the lens of a specific disease-centered analysis, paradigmatic conflicts related to pharmaceutical patents are illustrated here: the management of public-private technology transfer efforts between government and industry and the intellectual property conflicts that can arise over an unpatentable compound (Taxol); initiatives to accelerate generic pharmaceutical development and the antitrust concerns raised by collusion between brand-name and generic pharmaceutical companies in patent settlements (Taxol, Tamoxifen); the resolution of patent rights to novel molecular targets between competing biotechnology companies, and the demand for the establishment of a regulatory pathway for biogenerics (Herceptin); the controversy over the patenting of DNA, especially genes, and whether such patent rights interfere with scientific progress or reduce clinical access, and the contrasting opportunities for public opposition between the American and European patent systems (BRCA1 and BRCA2 genes). The efforts of women's health advocates to intervene where patent-related obstacles complicate patient access to therapeutic compounds can be observed at many of these junctures.

The women's health movement of the last several decades has focused attention on the health care needs of women, particularly with respect to gender-specific diseases, such as breast cancer. Increased biomedical research into women's health, a desirable outcome of such activism, may be accompanied by patent-related issues that paradoxically frustrate access to medical breakthroughs. A comprehensive effort to ensure women's access to health resources must incorporate an analysis of patent incentives for research and development as well as patent-related barriers to medical treatment in order to guarantee gender parity in health care.

Keywords: Health, patent, pharmaceutical, drug, cancer, women, feminist, medical, science, gene, DNA

Suggested Citation

Kane, Eileen M., Molecules and Conflict: Cancer, Patents, and Women's Health. American University Journal of Gender, Social Policy & the Law, Vol. 15, No. 2, 2007. Available at SSRN: https://ssrn.com/abstract=960772

Eileen M. Kane (Contact Author)

Pennsylvania State University, Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

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