Continuing Fallout from the Decision to Overturn Myriad’s Patents

I follow the genetic testing field and have watched the field’s developments since the Myriad decision on patentability of genetic sequences with great interest. One very interesting and very important question is whether the ability to patent naturally occurring genetic sequences,as in the case of the BRCA genes, would impede innovation or not. The argument is that patenting genes is good because that will spur risk taking and investment because of the reward of monopoly. The countervailing argument is that such exclusivity restricts innovation by blocking risk-taking work to move that area forward.

I have no problem with companies making a lot of money from their innovative work. But, as a student of genetic testing, especially in oncology, I have been concerned that the tight control Myriad Genetics was exerting over BRCA testing (see any of the numerous news stories about Myriad’s lawsuits against competitors) might be causing others to stay away from BRCA testing, as this behavior was intended to do. None of the other genetic testing companies with the capability to develop commercially successful competing tests would go anywhere near this field as long as Myriad was threatening to sue whoever does.

This story in Medscape suggests that, now that Myriad no longer threatens to sue, that innovative new research is being done, publicly. As this story suggests, improvements in BRCA testing using multigene panels (which had excluded BRCA genes because of legal concerns) may be the path to more accurate and useful genetics tests for breast cancer risk than the single BRCA gene tests Myriad was selling.

To me, this suggests that the original allowance of patents on naturally occurring gene sequences was overreaching and, in fact, stifled innovation. Our system was set up to hash these things out in just this way, so I’m pleased to see what appears to be a successful progress through the gene sequence patent issue. It seems very likely that more cool innovation will surface in the wake of this legal battle.

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