The patentability of genes

Benjamin D.

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Thèmes abordés

Patent, Myriad, genes, USPTO, patentability, bio-piratery, anti-commons, brevet, gène, genetics, condition

Lecture
Résumé
Sommaire
Extraits
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Résumé du document

As all the novelties, the biotechnological and genetic industry causes problems of intellectual property. Moreover, the genes are very special things, not only because they touch to the living, but because they are carrying hopes (new therapies, drugs...) and fears too (protection of the Human body, protection of the collected data...).
The main problem is to find an equilibrium between the incentive to innovate and the diffusion of the information and the knowledge in the sensible sector of the genetic. Thus, the authority tried to insert the problem of the patentability of the living (in general) and genes (in particular) in the preexistent intellectual property protection system: the patents system.

Sommaire

Introduction
Chapter 1: the terms: Patents, genes and their links
1.1. The patent
1.2. The gene: a brief historic of the patentability of genes
1.3. A concrete case: Myriad Genetics and the Breast Cancer genes 1 & 2 .

Chapter 2: the gene and the patent in the light of the economic analysis
2.1. From Economic arguments in favor of the patentability of genes.
2.1.1. Patents and incentives
2.1.2. Patents and diffusion of the information/ knowledge
2.1.3. Patents, innovation and economic growth
2.2. ...To the economic arguments against the patentability of genes
2.2.1. Monopoly and the extent of the patents
2.2.2. The Tragedy of the Anticommons and the transaction costs
2.2.3. The genetic industry and the cumulative innovations theory
2.3. For a new form of protection of the intellectual property?

Chapter 3: The Ethic, the Law, the Society: What position with the patentability of genes?
3.1. An ethical and legal point
3.1.1. What about the legislations?
3.1.2. The bioethics laws
3.1.3. The distinction between invention and discovery: a look at the conditions for granting patents
3.2. What social consequences?
3.2.1. Genetic industry and developing countries: the bio-piracy
3.2.2. Patents, biotechnologies and health
Conclusion
Appendix
A.1. A simply model of patent race
A.2. The defense of BIO against the Anticommons argument
Bibliography

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Extraits

[...] Here, the patent is a good thing because it may lead an expansion cycle of the economy. However, this theory is challenged today because the cycle theory isn't verified in practice. Today, the innovation process (help by the patent) must be treated in a special view: the endogenous growth theory. According to Paul Romer, the ideas create other ideas (cumulative character of the knowledge) and the innovation is the most important growth factor It's valid for the second version of Coca Cola. [...]

[...] Bradford, Lawrence H. Summers (August 2001): Economy”: Questions, and Speculations”, available on Background, http://econ161.berkeley.edu/Econ_Articles/summersjh2001.pdf University of Toulouse Capitole 32 Duncan David Ewing (May 27, 2OO9): “What's the Point in Patenting Technology Review, MIT European Patent Office: “Définition de la mission de l'Office”, available on http://documents.epo.org/projects/babylon/eponet.nsf/0/87f4394576ec13aec125723d005a8b0 b/$file/myriad_presspack_fr.pdf Haseltine A. William (September 2000): Case for Gene Patents”, Technology Review, MIT Huriet Claude, Dr Dominique Stoppa-Lyonnet (June 26, 2007): brevetabilité du vivant”, Curie Institute Joly Yann (January Lex 2005): Biotechnologies Montreal, et brevets: on le cas de la pharmacogénomique”, Electronica, available http://www.lex- electronica.org/articles/v10-2/joly.pdf Kushan Jeffrey P. [...]

[...] We can conclude that the main argument is the fear of the marketisation of the human body. Jeremy Rifkin compares this fact with the debates opposing the Church and the tradesmen about the usury. The Church considers that the usury was an income on the Time whereas this one does not belong to the men but to God. The world rocked little by little towards capitalism such as we know it. So we can ask to us if this new stage announces the emergence of a new capitalism or if it's simply an alarmist argument The distinction between invention and discovery: a look at the conditions for granting patents The most difficult element to manage for the lawyers is the mitigation of the distinction between invention and discovery in the genetic industry. [...]

[...] The economic theory explored this topic by the Green and Scotchmer model (1995). With Two cumulative innovations, the first one can be realized by the firm A for a cost of the second by the firm B for a cost of . Their respective value will be and and . We admit . Under this that the innovation is socially desirable, it means that: condition, Do the patents are desirable? If a patent is granted for each invention, the two innovations will be realized if (and . [...]

[...] However, many patents have been granted with a simple discovery of the gene. The companies argue that it's the technical process of isolation that is patented, not the gene. Even this point is questionable, the increasing computerization of procedures in the field of genetics leads to less human intervention in the isolation of a gene. Can we still consider that it's the hand of the man who isolated the sequence? Not sure. Even if we delete this condition, the demand of a patent must respect the other conditions: the industrial utility and the non-obviously. [...]

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