June 19, 2012
ATLANTA – On February 23, 2012, the Center for Law, Health & Society and the Intellectual Property Law Society hosted University of Missouri-Kansas City School of Law Associate Professor Christopher Holman, PhD, JD. "Professor Holman’s research focuses on cutting edge issues in the interface between biotechnology and patent law," said Georgia State University College of Law Professor Yaniv Heled. "He is a prominent authority on such issues, so we were very excited to have him."
Holman's presentation focused on debunking the myth that 20% of human genes are patented, a widely cited proposition based on a 2005 article in Science. This proposition has led to the assumption that thousands of human genes cannot be used, studied, or even "looked at" by researchers and health care providers without infringing on a patent, unless the researcher receives permission or a license, which could involve burdensome expense.
"The policy discussion has been driven by misperceptions of what a gene patent actually is and more particularly treating this idea of 'gene patents' in abstract terms without actually looking at these patents," Holman said.
Holman demonstrated how a lack of understanding of patent law contributed to the creation of a myth. He further explained why there is no basis to infer from the Science article that current whole genome sequencing technologies would result in the infringement of a large number of human gene patents. "Up until I asked the author for [the research data for the Science article], no one had asked to examine it," he stated. "No patent person had ever looked at these patents used to support their claim."
Holman described how he examined a random sample of 533 patent claims from the full data set of 4270 patents that the Science article authors identified as "gene patents." Of the sample of 533 patent claims, Holman found that 139 do not include a single claim that could be infringed by any form of genetic testing, 366 include a product claim covering a DNA molecule, and only 48 include a method claim that could potentially be infringed by some form of genetic testing under some circumstances.
Holman also reviewed patent litigation and found that very few lawsuits have been filed for infringement. "An important thing to remember is that we have had these patents for many years and no one has ever successfully asserted one," Holman argued.
Added Heled, "Professor Holman's work on this issue is so important, not only because it does away with this myth about gene patents, but also because it serves as a warning sign for all of us that we must take similar claims made about biotechnology patents with a grain of salt."
To view the presentation, please click here.