Jumping Jenes: Hung Dam, Jodi Faulkner

1
Patents Does one size fit all?

• Jumping Jenes Hung Dam, Jodi Faulkner Sheila
  Schindel

2
Our position

• We are against
• the liberal granting of patents
• the uniform scope of patents

3
Agenda

• Original Purpose of Patents
• Review of International Patent Standards
• Patenting Life
• Harvard Mouse Case
• Unethical patent practices
• Myriad Patents
• Recommendations
• Modification of current patent system
• Alternatives to patenting

4
Original Purpose of Patents

• To stimulate progress of science useful arts
• Bargain Struck
• Giving exclusive rights to inventor
• In return for disclosure
• Alternative most often cited
• Trade Secret

5
Overview of International Patent Standards

• Patentability requires
• Novelty
• Utility
• Non-obviousness
• Canada
• Patent Act (1869)
• 20 yrs exclusive rights
• US
• US Constitution under Patent Act (1952)
• 17 yrs exclusive rights

6
Harvard Mouse

• Background
• Diamond v. Chakrabarty (1980)
• Harvard developed mouse in early 1980s
• Predisposed to cancer, facilitates clinical
  research
• U.S., much of Europe Japan patented for more
  than a decade
• Problems
• Must pay Harvard Licensing Fees to use
• Stunting Research

7
Overview of Canada StandardsLife patents

• Canada Supreme Court Dec 5, 2002 decision
• Mouse could not be patented
• Canada
• Allows patents on
• Proteins
• Genes
• Cells from plants/animals humans
• Human and animal diagnostics performed on the
  human or animal body
• Not allowed on
• Whole plants, plant varieties
• Human animal organs
• Human animal therapies (incl. gene therapies)
  performed

8
Overview of International StandardsLife patents

• US
• Commonly described as anything under the sun
  made by the hand of man
• invents/discovers new useful process,
  machine, manufacture, or composition of matter,
  
• Biotechnology falls under this
• Comparison
• Canada is more conservative and U.S. is
  commercial

9
Myriad Case

• BRCA1 BRCA2 genes
• Mutation of responsible for 5-10 breast cancers,
  and BRCA 2 influences ovarian cancer
• Myriad Genetics Inc. (Utah)
• Monopoly on the genes
• Any information relating to or derived from them
• All methods developed to diagnose treat
  hereditary breast cancer ovarian Cancers
• Therapies for cancers from genetic mutations
• Screening of drugs for cancer therapy screening
  for the genes in women

10
Myriad Case

• Problems
• Tests cost too much
• Patients suffer
• Further research into these genes prevented
• Not fulfilling purpose of patents

11
Recommendations Changes

• Modify patents system
• Restrict the scope of patents
• Tiered system
• Raising the bar for the criteria
• of patentability
• Enforce research exemption
• for academic research
• Allow the ordre public law to be enforced
• To protect ordre public or morality including
  to protect human, animal or plant life or health
  or to avoid serious prejudice to the environment,
  provided that such exclusion is not made merely
  because the exploitation is prohibited by law

12
Recommendations Alternatives

• Alternatives
• Compulsory Licensing
• Certain biotechnologies
• Related to healthcare
• Prizes
• Akin to Noble Prize, but more just within
  Canada

Licenses
Issued
13
Recommendations Alternatives

• Alternatives
• Tax Breaks
• Grants/Public R D

14
Final Thoughts

• Look at how far we have deviated from the
  original intent of patents does the current
  system induce innovation?
• Where do we draw the line with intellectual
  property?
• Microorganisms gt Mice gt Dogs gt Humans?
• There are alternatives to patents other than
  preclusive trade secrets!
• The solution is not rejecting patents entirely,
  but modifying them using alternatives for
  products which can not be ethically patented.