Could Myriad Benefit If They Lose Their Case?


Bioephemera provided an excellent overview of the ongoing appeal to the "Myriad gene patent case."

Jessica Palmer wrote:

Myriad Genetics's patents on the breast cancer genes (BRCA1 and BRCA2) were invalid because genes are unpatentable products of nature.

Could Myriad Benefit If They Lose Their Case?

I believe that if Myriad and the biotechnology industry itself embraces open innovation, that ironically they could indeed benefit. Let me explain.

A review in Science stated (April 2010):

A legal bombshell hit the biotech world last week: A federal judge in New York City used sweeping language to invalidate a handful of human gene patents, casting doubt on hundreds more. The decision applies only in New York state and is sure to be appealed--a process that could take years. Still, it undercuts the idea that DNA sequence can be owned.

My response, published as an E-Letter in Science described how Myriad could actually benefit if they lost their case:

Doctrine of Equivalents Driving Research?

Responding to court rulings such as the one reported in E. Marshall's News of the Week story ("Cancer gene patents ruled invalid," 9 April 2010, p. 153), scientists interested in studying a patented gene often resort to strategies such as selecting minor variations of the original gene's sequence--for example, by mutating several DNA bases. In doing so, the doctrine of equivalents as articulated by U.S. patent law becomes the lynchpin regarding how basic research is done. The same scientific acumen applied to navigating around patents could be applied to the next discovery. The federal court decision regarding Myriad, if upheld, could foster incentives from an open innovation system that not only benefits the public but, ironically, private industry, including Myriad.

So, what should drive research? Should it be patent law, the "doctrine of equivalents"? Legal cases such as Myriad could serve as a turning point for scientists to embrace open innovation, liberating them from the constraints that patents can impose. To become profitable, industry itself would have to redefine how they share their information and how incentives are shared amongst the key stakeholders, including scientists, consumers and manufacturers.

Is this possible, or is it a pipe dream?

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âIs this possibleâ

Why not? Intervening in our economy's progress and innovation systems with patents is like prescribing a powerful side-effect laden medicine and, at least in some areas, I think we may have been the victims of quackery.

Is this possible, or is it a pipe dream?

I think it's necessary.

I think you can't patent natural DNA sequences anymore than you can patent a mineral such as silver.

You can mine the silver, you can resell it, you can trade it, and you can use it as a resource to make other, marketable stuff, but no one owns a patent on silver itself.

So I say DNA should be viewed as a naturally occuring resource. You can charge others to locate, manipulate, and resell it, and, more significantly, you can use it to manufacture a unique, patentable product, but you cannot yourself hold a patent on it.

I have several reasons for thinking this.

1. You didn't create it. You may have discovered a particular sequence, but you didn't create it. It's not a product you created. Again, it's a resource you found, not a an invention of your own.

2. When you patent DNA you tread on the turf of claiming a patent on a lifeform. You are claiming a patent on life itself. I think humans would be very wise to not jump into that morally questionable territory. The potential for very nasty fallout from claiming to own another organism's life is quite high. In fact, has a legal precedent ever been set deciding whether an individual "owns" his own life? Even if he did, could he then resell it for a profit? It gets into real wobbly territory, real fast.

3. The overall effect will be to stifle research and innovation, as you have already pointed out.

There is a better way.

The way of patenting life is ugly, morally reprehensible, and leads to very bad problems later on down the road.

Let's take the high road while the science is still in its infancy, so as to make it much more difficult for those with less pure intentions later in the century.

The irony is that (large) corporations don't necessarily benefit from the strong IP rights regimes which they - more to the point, their erm... economically naïve in-house IP professionals - invariably advocate and lobby for. The âregulatory capturersâ have unwittingly been captured from within themselves. For example, both US and EU database companies lobbied for IP rights in databases. The EU got them, the US didn't.…