ATRIP Intellectual Property series
Edited by Jan Rosén
Chapter 4: Individualism, Collectivism and Openness in Patent Law: From Exclusion to Inclusion through Licensing
Geertrui Van Overwalle INTRODUCTION 1. Recently, a shock wave swept through the biotechnology community when Judge Robert W. Sweet of the District Court for the Southern District of New York decided to deny patent protection for isolated human genes and associated diagnostic methods. The case related to genetic tests for familial breast and ovarian cancer developed by Myriad Genetics.1 Although the decision has been appealed 2 and may well be reversed in light of the Bilski case,3 many of the concerns relating to the impact of gene patenting, which are extensively discussed in this case, will continue to exist. The Myriad case is an exponent of a systemic problem. The disputed issues in the Myriad case point to the uneasy relationship between human genomic science and intellectual property (IP). The debate particularly revolves around the alleged hindering effect of single, blocking patents, on the one hand, and patent thickets, on the other hand, in the area of genetics. Inspired by the ongoing exchange of ideas on distinct modes of ownership and their respective impact on exclusivity and competition,4 the 1 Association for Molecular Pathology v. USPTO, Southern District of New York (March 29, 2010). For details and discussion of the Myriad decision, see Geertrui Van Overwalle, ‘Turning patent swords into shares’, 330 Science, 2010, 1630–1631; Isabelle Huys, Geertrui Van Overwalle and Gert Matthijs, ‘Gene and genetic diagnostic method patents. A comparison under current European and US patent law’, European Journal of Human Genetics (EJHG), 2011, June 8....
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