Chapter 1: Patents, profits and the public
Some of the most significant legal cases this century have centred on controversial patents granted to individual scientists, university spin-offs and for-profit organizations over scientific breakthroughs that have the potential to revolutionize the diagnosis and treatment of crippling diseases. Litigation on the patentability of isolated genes and cells in the Myriad, WARF and Brustle cases has resulted in landmark rulings from the highest courts in the US and Europe. From the patients’ and researchers’ perspective the concerns centre primarily on the adverse impact of the patents on access to science and its benefits, a universal and fundamental human right enshrined in Article 17 of the Universal Declaration of Human Rights (UDHR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) respectively. The principle captured in this fundamental human right is prima facie relevant to the determination of the nature and scope of legal intellectual property rights and patents in emerging fields of science. Yet, the right to access the benefits of science has not been directly invoked or weighed in the reasoning of patent offices and courts in these landmark cases. The first part of this chapter sets out the context and commercial interests in basic research in genetics and the biological sciences behind the Myriad, WARF and Brustle cases. The second part analyzes the potential normative relevance of the right to access the benefits of science in the resolution of these cases.