Today’s New York Times story on the recent court decision on gene patents (see earlier posting) makes two important point. The first is that the industry has already shifting to a point where the decision may not have as much impact:
Diagnostic laboratories, for instance, are shifting from testing individual genes to testing multiple genes or even a person’s entire genome. When hundreds or thousands of genes are being tested at once, patents on each individual gene can become a hindrance to innovation rather than a spur.
This is especially important in the context of the split on patent reform between IT and bio — where electronic devices contain multiple patents that all need to be “owned” whereas bio usually has a few. Consequently, the electronics folks are more concerned about patent assertions what will block their products and the bio folks are concerned about counterfeits [a grossly over simplified description I know]. If parts of the bio industry are moving to a point where dealing with a multitude of individual patents becomes a barrier, they might swing over to the IT side of the debate.
The second point made in the story is this:
Even before an appeal is decided, the landscape could change in a way that would render the Myriad case moot. A ruling is expected soon from the Supreme Court in the so-called Bilski case. That case does not directly concern gene patents — it is about a fight over a method of hedging risk in commodities trading — but it gives the Supreme Court a chance to set new standards on what is patentable.
Everyone expects the Supreme Court to narrow the scope of patents — the only question is how dramatically. The Court heard oral arguments on that case back in November (see earlier posting). So we are just waiting on a decision – which could come at any time.