Researchers and physicians in the United States have their backs against the wall. Increasingly, fundamental research inputs and medical outputs are patented, yet the traditional tools for balancing public and private interests are largely broken.
Cases like AMP v USPTO — the so-called Myriad case which challenges the patentability of isolated DNA and DNA diagnostic and screening methods — are symptoms of a disease: attacks on patentable subject matter appear to be the only avenue left for protecting the viability of upstream research and its efficient translation into downstream products.
I begin with an underlying contention in Nicol’s essay: that the problem posed by gene patents is transient. I then move on to discuss the evidence that these patents are not problematic, focusing especially on whether the evidence she cites can be generalised to the United States. I look at the public-interest safeguards that existed when Judge Learned Hand decided Parke-Davis v Mulford, the seminal case holding isolated natural products patentable, and then consider how these doctrines might be revived and modernised.
Rochelle Cooper Dreyfuss is the Pauline Newman Professor of Law, New York University School of Law. She was a member of the US Health and Human Services Secretary’s Advisory Committee on Genetics, Health, and Society and served on its task force on Patient Access to Genetic Tests.
© 2011 Journal of Law, Information & Science and Faculty of Law, University of Tasmania.