[Ip-health] Patents as Barriers to Research

[Sara Crager]

Patents as Barriers to Research

Sara Crager
MD/PhD Candidate, Yale University
Universities Allied for Essential Medicines

We are currently at the IGWG negotiations in Geneva.  Today the focus of th=
ese
negotiations is on elements relating to patents and innovation.

A central role of the patents system is supposed to be its ability to stimu=
late
innovation.  Available evidence, however, indicates that patents can act as
barriers to innovation.  In following todays IGWG negotiations, we note tha=
t
despite this evidence a number of OECD states have made strong statements t=
o
the contrary.

Highly relevant to a discussion about the effects of patents on research ar=
e
several points from the OECD International Futures Project on "The Bioecono=
my
to 2030: Designing a Policy Agenda" report on Intellectual Property Issues =
in
Biotechnology, February 2008 (http://www.oecd.org/dataoecd/16/9/40181372.pd=
f):

"A member survey conducted by the American Association for the Advancement =
of
Science in 2005 found that 40% of respondents reported difficulties in
obtaining access to patented technologies, and over half of these said thei=
r
research was delayed or changed course as a result.65"

"As noted earlier, the available evidence does clearly show a bona fide pro=
blem
with access to gene-based diagnostic tests, for research and especially
clinical purposes.  One early and small-scale study found that 30% of clini=
cal
laboratories reported not developing or abandoning testing for a gene
associated with haemochromatosis once the patent issued.70  Another
investigation of over 100 laboratories found that 25% of respondents
discontinued clinical testing because of a patent or license; although the
BRCA1/2 test was the most commonly identified, eleven other genetic tests
ceased to be offered because of the existence of patent rights.  In terms o=
f
research use, 53% of respondents halted development of a new clinical test =
due
to a patent or license.72  Some instances of health care service providers
continuing to conduct testing have been reported, but numerous other provid=
ers,
fearing expensive litigation, have stopped testing outright.73"

"This is once again illustrative of our point that it does not matter wheth=
er
these difficulties are a problem with patent rights per se or of the way th=
ey
are perceived =96 either can impact access. Just as it is appropriate to ta=
ke
into account perceptions of patents as being important to a firm's ability =
to
attract
investment, it is equally legitimate to consider researcher perceptions tha=
t
patents prevent access.  As there is no reason to expect that scientists'
knowledge of the patent system is any deeper in the industrial
biotechnology field, one would expect similar results to exist there."