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Group calls for biotech companies to end culture of patent protectionism

Photonics Spectra
Nov 2008
David L. Shenkenberg

“If biotech companies enter into partnerships through which they share their knowledge with other firms, universities, etc., they will be able to obtain higher long-term returns or increase the value of their assets,” said Richard Gold, the McGill University associate professor of law who oversaw a recent report by the International Expert Group on Biotechnology, Innovation and Intellectual Property.

Richard Gold, an associate professor of law at McGill University in Montreal, said that biotech companies can make more money in the long run by collaborating instead of engaging in protectionism.

The 44-page report is titled “Toward a New Era of Intellectual Property: From Confrontation to Negotiation.” It describes conclusions based on seven years of research. Gold and colleagues released the data behind the conclusions at a congressional briefing in Washington on Oct. 14.

The report juxtaposes case studies in the US, Canada, the European Union, Japan and Australia with those in India, Brazil and Kenya. “We found the same stumbling blocks in the traditional communities of Brazil as we did in the boardroom of a corporation that holds the patent to a gene that can determine the chance that a woman can develop breast cancer,” Gold said.

He was referring to the case study of Myriad Genetics that he conducted with Julia Carbone, “Myriad Genetics: Inside the Eye of the Policy Storm.” Myriad is a US company based in Salt Lake City that patented breast cancer genes that academic scientists had been studying for years. These scientists questioned whether a company should have the right to patent a human gene at all, let alone one that they had worked on discovering. The company ordered academic scientists to stop administering the genetic screening tests to patients without paying the company, but the scientists claimed research exemption. Needless to say, this move deepened ill will toward the company.

Around the world, other companies claimed patents on these genes. These companies and Myriad engaged in patent infringement suits. Myriad also met resistance from the public health systems of countries like Canada that do not want to relinquish control of the screening test to a company. Although Myriad has made substantial revenues from the tests, it has failed to make a profit.

Gold and Carbone conclude, “Myriad acted within its formal legal rights, [but] when legal rights conflicted with business and governmental norms and with institutional structures, it was the set of the legal rights that were of least significance.”

How does the Myriad case compare with Brazil? Maristela Basso, an associate professor of international law at the University of São Paulo, presented the Brazilian case study to Canadian officials in Ottawa on Sept. 7. She said that nongovernmental organizations sue companies that use medicinal knowledge from indigenous tribes without consent, but no one is there to help the companies and native people come to a mutually beneficial agreement.

Gold is also president of the Technology Innovation Partnership, an international nonprofit consultancy of intellectual property specialists that was formed to address the need for a mediator. The report and case studies are available on the consultancy Web site at

biotechhuman geneMyriad GeneticsPatent NewsSlices from the Breadboard

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