Van Overwalle, Geertrui --- "Individualism, Collectivism and Openness in Patent Law: From Exclusion to Inclusion through Licensing" [2012] ELECD 195; in Rosén, Jan (ed), "Individualism and Collectiveness in Intellectual Property Law" (Edward Elgar Publishing, 2012)

Book Title: Individualism and Collectiveness in Intellectual Property Law

Editor(s): Rosén, Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9780857938978

Section: Chapter 4

Section Title: Individualism, Collectivism and Openness in Patent Law: From Exclusion to Inclusion through Licensing

Author(s): Van Overwalle, Geertrui

Number of pages: 44

Extract:

4. Individualism, collectivism and
openness in patent law: from
exclusion to inclusion through
licensing
Geertrui Van Overwalle

1. INTRODUCTION

Recently, a shock wave swept through the biotechnology community when
Judge Robert W. Sweet of the District Court for the Southern District of
New York decided to deny patent protection for isolated human genes and
associated diagnostic methods. The case related to genetic tests for famil-
ial breast and ovarian cancer developed by Myriad Genetics.1 Although
the decision has been appealed 2 and may well be reversed in light of the
Bilski case,3 many of the concerns relating to the impact of gene patent-
ing, which are extensively discussed in this case, will continue to exist. The
Myriad case is an exponent of a systemic problem. The disputed issues in
the Myriad case point to the uneasy relationship between human genomic
science and intellectual property (IP). The debate particularly revolves
around the alleged hindering effect of single, blocking patents, on the one
hand, and patent thickets, on the other hand, in the area of genetics.
Inspired by the ongoing exchange of ideas on distinct modes of own-
ership and their respective impact on exclusivity and competition,4 the


1 Association for Molecular Pathology v. USPTO, Southern District of New

York (March 29, 2010). For details and discussion of the Myriad decision, see
Geertrui Van Overwalle, `Turning patent swords into shares', 330 Science, 2010,
1630­1631; Isabelle Huys, Geertrui Van Overwalle and Gert Matthijs, `Gene and
genetic diagnostic method patents. ...