Van Overwalle, Geertrui --- "Patent pools and clearinghouses in the life sciences: back to the future" [2017] ELECD 818; in Matthews, Duncan; Zech, Herbert (eds), "Research Handbook on Intellectual Property and the Life Sciences" (Edward Elgar Publishing, 2017) 304

Book Title: Research Handbook on Intellectual Property and the Life Sciences

Editor(s): Matthews, Duncan; Zech, Herbert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479443

Section: Chapter 17

Section Title: Patent pools and clearinghouses in the life sciences: back to the future

Author(s): Van Overwalle, Geertrui

Number of pages: 31

Abstract/Description:

Patents in the life sciences sector have sparked considerable debate over the past years. The grant of a series of patents for the screening of breast cancer (BRCA) genes led to wide controversy in Europe, the US and Australia.The grant of patents for plants resulting from essentially biological processes, notably tomatoes with reduced fruit water content and broccoli with anti-cancer potential, also spurred stormy disputes.Decisions on the scope of plant biotech patents equally fueled a legal battle.Last but not least, the grant of patents for human embryonic stem cells in the US, triggered fierce discussions in Europe.In the ongoing debate, concern has been expressed about the potential hindering effect on innovation of the continuous increase of patents in the life sciences. The academic debate on the possible discouraging impact of the proliferation of patents was set in motion by the seminal article from Heller and Eisenberg ‘Can Patents Deter Innovation? The Anticommons in Biomedical Research’ in 1998.Over the years, various strategies have been suggested in scholarly literature to mitigate the alleged hindering effect.A first suggestion was to narrow down patentable subject matter, notably to carve out human genes from patent protection. This approach was applied in the recent verdicts of the US Supreme Courtand the Australian High Court.In the slipstream of those verdicts, the patentability of human genes might be challenged before the Court of Justice of the EU, based on the argument that isolated human genes do not meet the definition of ‘invention’. A second approach was to strengthen patentability requirements. The ‘raise the bar’ approach to granting ‘high quality patents’ is still pursued today.A third approach was to limit the scope of patents, and insert purpose bound protection.A fourth response was to broaden exemption regimes in patent law, and in particular widen the research exemption.In the same vein, the introduction of a so-called breeder’s exemption is contemplated at present.