Patent wars update — gene patents (2)

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.

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