Biotech and Pittsburgh's Future

Folks say that biotechnology innovation is central to Pittsburgh's economic future, so more than patent lawyers are likely interested in the recent lawsuit filed by the ACLU on behalf of certain cancer patients, challenging the proposition that human genes can be patented. The patients have been denied access to diagnostic tests produced by the patentee and defendant; that company (Myriad) is the sole producer of the tests, because it controls the relevant patent. The Post-Gazette ran a good story on the case this morning. The NY Times had a long story yesterday.

The public health implications of genetic patents aren't straightforward. These particular patients have suffered clear and demonstrable hardship on account of the patent system, but some might argue that the right to patent genes serves the greater good by offering private firms a needed incentive to research and produce relevant diagnostic tests and therapies. My Pitt Law colleague Alan Meisel, a health law expert, took that view in today's PG report. In addition, patent lawyers themselves, particularly patent lawyers who work in biotech and biomedical fields, tend to simply freak out when anyone suggests that patenting less than the entirety of the human imagination is being considered. To many people, the wisdom of the patent system and the wisdom of every particular patent is beyond question.

So I'll question it, at least in this case. Specifically, I'll disagree that questioning patents on genes puts investment and innovation in relevant diagnostics and therapies at risk. There's a ton of research out there on relevant science and technology that is not driven by patenting, much of it being done at Pitt and other research institutions. (Patents play a role in "pulling" useful applications out of these research institutions, but they don't matter so much to whether or not the research gets done.) Meanwhile, even to the extent that incentives to innovate are affected, they have to be balanced against the concrete harms caused by patenting in this area. And we're focused today only on harms in the US; harms abroad, especially in less developed countries, may be even more severe.

Is resolving this question a topic for Congress (which has been focused for a while on patent reform, and which may be close to a solution?) rather than for a court? My view is no; I tend not to like putting Congress in the role of industrial referee.

More later. But here's a concluding thought: I don't think that Pittsburgh's biotech community is being put at risk via this case.