I came across an editorial in this morning's Chronicle (you can read it without advertisments here if you have an SFPL library card) discussing a lawsuit that a group of cancer patients have filed against a biotech company called Myriad Genetics. The plaintiffs allege that Myriad's patents for two genes that are closely linked to breast cancer and ovarian cancer are invalid.
Myriad's patents enable the company to remain the sole provider of a lab test that can determine an individual's risk of these types of cancer. The test costs more than $3000 and, as the plaintiffs point out, it's impossible to get a second opinion because Myriad is the only company that offers it.
The Chronicle editorial and this earlier feature in the New York Times discuss the question of the validity of gene patents (can you patent something that occurs naturally?) and whether a patent monopoly is the best way to encourage innovation in biotechnology (other companies have widely licensed gene patents, making the lab tests more available and more affordable).
Sunday, May 24, 2009
Court case will test the practice of patenting genes
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The Myth that Patents are a Monopoly
A patent gives the holder the right to exclude others from making, using or selling the invention. 35 USC 154. It does not give the holder the right to make, use or sell their invention. A monopoly is an exclusive right to a market, such as an electric utility company. An electric utility company has the exclusive right to sell electricity in a certain territory. Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.
When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house. In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention. All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.
Some economists argue that a patent is designed to give the holder monopoly power. Those economists who are consistent also state that all property rights give some monopoly power. The property rights are monopolies thesis shows how confused economic thought is on this subject. The only logically consistent definition of a monopoly is an exclusive right to a market.
People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.
For more information on patents and innovation see www.hallingblog.com.
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