The patentability of genes - publié le 23/09/2014

Thèmes abordés

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

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. According to a study of the National Institute of Health, 20% of human genes are patented or in request (it represents about 50 000 potential patents).

However, according to a study of Paradise, Andrews and Hollbrook, 38% of patents on the genes are problematic. As we will see later, the patentability of genes has entrained manyprotestations. It's necessary to weigh the pros and cons with an economic point of view, but with an ethical, legal and social point of view too.That's why in a first part, we will define the main terms necessary to the development like gene or patent. We will expose a brief historic of the patentability of genes and we will finish by a presentation of the Myriad Genetic case.

Extraits

[...] Many authors said that the patentability of genes entrains an appropriation of the human body by the firms. However, to be precise, the patent is a temporary exclusivity right and not a property right. The Human body keeps his own property so the gene doesn't belong to the firm. Thus, The fear of a humanity reduced to slavery because the property of the human body would be monopolized by only one company is not founded. However, the debate on the marketisation of the human body is still justified. [...]

[...] It seems that (excepted particular cases) the patent don't constraint the free diffusion of the information. Moreover, it contributes to the fast dissemination of the knowledge by assuring the appropriation/diffusion equilibrium Patents, innovation and economic growth We have seen that the patent on the gene is good for the firms and the diffusion of the information but is it for the whole of the society? According to the Schumpeterian theory (the first theory on the inventive activity), the race to the innovation allowed by the instauration of a patent system leads a “creative-destruction” favorable to the economic growth. [...]

[...] The patent is delivered by an independent authority (PTO in USA, EPO in Europe ) but the patent must be in agreement with the jurisdiction of the country. It is delivered for a given period, a given geographic space and a given object (the extent of the patent depends of the description and claims). So, the patent grants an exclusivity right: it's not a property right It's a social contract between the inventor and the society: the inventor has a temporary right but he must divulgate the information about his invention. [...]

[...] 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. [...]

[...] Bradford, Lawrence H. Summers (August 2001): “The “New Economy”: Background, Questions, and Speculations”, available on 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 Genes?”, 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): ”The Case for Gene Patents”, Technology Review, MIT ⇒ Huriet Claude, Dr Dominique Stoppa-Lyonnet (June 26, 2007): “La brevetabilité du vivant”, Curie Institute ⇒ Joly Yann (January pharmacogénomique”, Lex 2005): Biotechnologies Electronica, Montreal, et brevets: available le on cas de la http://www.lex- electronica.org/articles/v10-2/joly.pdf ⇒ Kushan Jeffrey P. [...]