[Ip-health] Why are universities trying to limit access to breast cancer tests? by Timothy B. Lee
manon.ress at keionline.org
Mon Jul 15 09:25:30 PDT 2013
Why are universities trying to limit access to breast cancer tests?
By Timothy B. Lee, Published: July 15 at 10:08 amE-mail the writer
When the Supreme Court ruled that you couldn’t patent human genes, Ambry
Genetics began offering women a test for the BRCA genes, which are linked
to breast cancer. But last week, Myriad Genetics, the firm that has enjoyed
a de facto monopoly on BRCA tests in recent years, sued. It argues that
despite the Supreme Court’s ruling, it still has patents covering Ambry’s
Myriad is the lead plaintiff, but two universities also signed on to the
lawsuit: the University of Pennsylvania and the University of Utah Research
Foundation. These schools own BRCA-related patents, which they have
licensed exclusively to Myriad.
Why are universities trying to force a potentially life-saving cancer test
off the market? A spokeswoman for the University of Pennsylvania declined
to comment for this story, and a University of Utah spokesperson didn’t
return our call Friday afternoon. But the short answer seems to be money.
Many universities now have “technology transfer” offices whose job it is to
obtain patents based on university research and license them to private
industry. These activities generated $1.8 billion in patent licensing
revenues in 2011.
This is a relatively new phenomenon. According to the Wall Street Journal,
universities were only obtaining about 250 patents a year as recently as
1980. Then Congress passed the Bayh-Dole Act, which made it easier for
universities to claim patents for federally-funded research. By 2003, the
number of patents universities were getting each year had shot up more than
10-fold to almost 4,000.
Officials at technology transfer offices like to emphasize how they help
move technologies developed in the laboratory into the commercial
marketplace. But getting private companies to pay hefty licensing fees
always rests on an implicit threat: if you don’t pay up, you could get sued
for patent infringement.
And in some cases, these enforcement efforts are hard to distinguish from
garden-variety patent trolling. In one high-profile case, the University of
California licensed a patent to a company called Eolas, which claimed to
own the concept of embedding interactive content in web pages. Eolas has
sued a wide variety of high-tech companies, with the University of
California sometimes signing on as a plaintiff. A settlement with Microsoft
alone netted more than $30 million for the University of California.
Myriad doesn’t fit the standard definition of a patent troll because the
firm offers a suite of BRCA testing products. But its aggressive efforts to
claim ownership of a basic fact of human biology—that the BRCA1 and BRCA2
genes are linked to breast cancer—raises many of the same issues.
Firms like Ambry don’t have to use any of the specific techniques Myriad
and its university allies invented in order to run afoul of their patents.
Any product that sequences the BRCA genes for diagnostic purposes is likely
to expose a competing firm to a lawsuit.
The standard argument for patents holds that they are needed to reward
inventors for their creative endeavors. But that argument doesn’t make as
much sense for universities. Most university research is funded by
taxpayers and private philanthropists, not profits from commercial
activities. And university researchers are motivated more by academic
prestige than the prospect of earning licensing revenues for their
Of course, higher licensing revenues enable universities to engage in
research and educational activities they might otherwise be unable afford.
But as the Myriad lawsuit illustrates, that licensing revenue is not free.
Every licensing negotiation comes with an implicit threat to sue for patent
infringement if the licensing company doesn’t pay up.
In other words, in order to generate licensing revenue, the University of
Pennsylvania and the University of Utah are effectively limiting women’s
choices for a potentially life-saving cancer test. That seems hard to
square with universities’ broader mission to expand public access to
Manon Ress, Knowledge Ecology International, KEI
manon.ress at keionline.org, tel.: +1 202 332 2670
KEI is a not for profit non governmental organization that searches for
better outcomes, including new solutions, to the management of knowledge
resources. KEI is focused on social justice, particularly for the most
vulnerable populations, including low-income persons and marginalized
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