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Editorial: Reform the patent system

BY DI EDITORIAL BOARD | JUNE 14, 2013 5:00 AM

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On Thursday, in a blow to many genetic drug monopolies, the Supreme Court unanimously ruled that sections of the human genome may not be patented.

The court’s ruling — that patents on naturally occurring genetic material are invalid — seems obvious, but until Thursday, genetic medicine was dominated by gene patenting.

The case before the court — Association for Molecular Pathology v. Myriad Genetics involved a Utah-based drug company, Myriad Genetics, that discovered and subsequently patented a number of gene sequences useful in predicting the development of certain types of breast and ovarian cancer.

The patents in question gave Myriad the exclusive rights to isolate, manipulate, and synthesize the genes in question. Because of this government-granted monopoly on a molecule that occurs naturally in the body, it was able to charge thousands of dollars for much-needed cancer tests.

The court’s decision represents a major victory against anticompetitive behavior in the medical marketplace. The decision also frees up genetic research previously handcuffed by the threat of patent infringement.

Some opponents of the court’s decision argue that disallowing gene patents will destroy profitable monopolies and thus disincentivize the research and development of new genetic medical treatments. But even with this ruling in place, drug companies will still be able to patent and profit from the methods by which they identify, isolate, and manipulate the genes in question.

Though the court’s ruling puts to rest one major patent-law problem, there is still much to be done to repair the broken American patent system.

The deficiencies of American patent law are most visible in the tech sector, in which software giants and entrepreneurs alike are severely restricted by the constant threat of patent-infringement lawsuits.

Essentially, the current system is clogged with vague patents. According to the Electronic Frontiers Foundation, the U.S. Patent Office has issued patents on such basic online activities as the “sending and receiving of streaming audio and video over the Internet” and real-time multiplayer video games.

Virtually any new online product or service that could be conceived is likely to violate these overly broad patents. This wouldn’t be a problem, if it weren’t for the patent trolls.

Patent trolls — companies that buy up patents for the express purpose of suing companies and individuals for infringement — use these vague patents to extract millions of dollars from tech companies of all sizes.

In 2011, for example, Lodsys began pursuing action against many app developers, claiming that it held a patent on all in-app purchases and software updates.

The current system has created an environment in which online entrepreneurship is tempered by the constant threat of infringement litigation. The unfortunate state of the patent system has implications for inventors and entrepreneurs everywhere. In some cases, predatory patent litigation can sink small companies.

This is all to say nothing of the massive number of corporate resources being poured into patent-infringement fights among the world’s leading tech companies, most notably Apple, Google, and Samsung, in a series of recent disputes over smart phone technologies.

The Supreme Court took action to curb anti-competitive behavior in the genetic medicine marketplace. The country should follow this restriction on gene patenting with an aggressive push for patent reform designed to unlock the potential of entrepreneurs currently discouraged by an unfair, often predatory system.


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