Patent Envy Is Not Pretty

They say no good deed every goes unpunished, and there is a lot of validity to that old lament. I have a new public policy spin on that: No good law ever goes unchallenged.

The latest example of this is an attempt to weaken patent protections on genetic research, something that strikes at the heart of work being done at the University of Wisconsin-Madison.

This is no idle threat made by some backwater Congressman; it's the recommendation of an advisory panel to the Secretary of Health and Human Services. The panel wants to exempt genetic tests for cancer and other diseases from patent protection. That would mean that any entity could use genetic diagnostic research from any university without obtaining licenses.

The stated motivation behind this recommendation is to improve patient access to the research, but would that research even exist without strong patent protection as the incentive for discovery?

These innovations are the byproduct of strong patent law such as Bayh-Dole and the university-industry partnerships that have resulted. Bayh-Dole is the 1980 law, championed by former U.S. Senators Birch Bayh and Bob Dole, which gave universities the right to patent their inventions. This helped launch an unprecedented period of biotechnology innovation that includes the embryonic and pluripotent stem cell research of UW professor James Thomson.

Existing patent law has provided the incentives for university researchers like Thomson to commercialize their ideas, rather than have them "sit on the shelf," so to speak. Also as a result, research institutions like the UW, Georgia Tech University, and the universities of the North Carolina Research Triangle have become important economic drivers in their respective regions.

The argument of the committee that voted to weaken patent protection goes something like this: patent ownership of genetic science creates single commercial providers of the various genetic tests. This forces physicians who want to analyze blood and tissue to send the samples to specific providers, which represent a patchwork of testing labs. Some of these labs do not have agreements with Medicare or Medicaid to reimburse physicians for the work.

It seems to me there are better solutions to this problem than weakening laws that have promoted genetic discovery. Requiring Medicare and Medicaid to negotiate with every legitimate commercial provider is one; another would be establishing an exchange of genetic testing providers for physician use.

Let's hope Health and Human Services Secretary Kathleen Sebelius is sensible enough to try to address this problem without creating a larger one, and let's hope our Congressional delegation is unified enough to speak with one voice on this issue. If patent critics start with weakening patent protection in the area of genetics, what's to stop them from coming up with another guise to do it in other areas?