This article gives a nice overview over the development of the Supreme Court’s position on the patentability of biotechnology since Chakrabarty in 1980. While it points out that the Supreme Court has stripped back some eligible subject matter, in particular with its decisions in Myriad and Sequenom, it concludes that patent protection remains a valuable part of a biotechnology company’s business strategy.
The article also presents arguments pro and against stronger patent protection in this area based on a economic rather than moral approach. It points out that proponents of stronger patent protection fear that the elimination of entire categories of patentable subject matter “reduces or eliminates the incentive to invest in development of new treatments and diagnostic methods.”
But on the other hand, others believe this development fosters competition and increases “development of next-generation treatments resulting from modification of naturally occurring molecules.” This group also argues that the trend in the diagnostic market, anyway, is toward using information technology and data mining platforms.
Great article, Sandro. I hope the author is correct and that biotech innovation will still find patent protection, despite the Myriad case. Actually, maybe was the case that the Supreme Court instead of being conservative was establishing a clear limit for companies to claim an innovation where there was not one. As the “nature” article suggested by Professor Hollis highlights, the decision upon Myriad was celebrated by various researchers that did not agree with the company’s attempt to patent a single isolated gene. It could be the case that, if the Supreme Court ruled entirely in favor of Myriad, the patent would lead to less research rather than to more innovation.