Canadian Hospital Strikes Deal In Gene Patents Battle, But Leaves Patentability Question Unanswered

from the so-can-you-or-can't-you? dept

As Techdirt has reported, over the last few years there has been a general swing away from allowing patents on genes. The highest courts in both the US and Australia threw them out in cases involving Myriad Genetics and its attempts to patent genes affecting breast cancer susceptibility. Another country where the status of gene patents has been called into question is Canada. In November 2014, the Children?s Hospital of Eastern Ontario (CHEO) brought a case over five gene patents held by Transgenomic connected with the Long QT syndrome, an inherited heart rhythm disorder that can be fatal. CHEO took legal action because it wanted to be able to carry out genetic tests for the syndrome without needing to pay for patent licenses. Last week, CHEO announced that it had come to an agreement with Transgenomic:

On March 9, 2016, CHEO announced a deal that ensures Canadian public sector hospitals and laboratories the right to test for Long QT syndrome for Canadian patients.

What’s more, it sets a precedent that will help address the issue of gene patents more broadly in Canadian health care.

In the settlement, the patent holder Transgenomic has agreed to provide CHEO and all other Canadian public sector hospitals and laboratories the right to test Canadians for Long QT syndrome on a not-for-profit basis. The deal defines a pathway for all public Canadian hospitals and labs to conduct genetic testing without legal roadblocks from gene patents.

CHEO called this a “tremendous win for families”:

We have created a model for recognizing the public interest in genetic testing within the Canadian health care system. As these tests can now be performed in Canada, families across the country will have better, quicker access to the answers and the care they need. This agreement will save lives.

Moreover, CHEO believes it has created a template for others in Canada to use more widely:

From now on, public hospitals and laboratories can ask patent holders to sign similar agreements allowing not-for-profit access. If the patent holder doesn?t agree, the province can step in and ask the patent office to give it, on behalf those hospitals and laboratories, a compulsory license on the same terms.

That’s certainly a good deal, and solves CHEO’s immediate problem of being able to carry out genetic testing without paying for licenses. But viewed against the landmark rulings obtained in the US and Australia, it’s something of a failure. An analysis on the legal site Lexology explains:

The patents in question remain valid and enforceable against commercial use of the isolated genes in Canada, because the case settled without a determination of the subject matter patent-eligibility of genes (“subject-matter patent eligibility” refers to whether genes are a patentable category of invention — for example, abstract ideas, pure business methods and laws of nature are not patentable subject matter).

Moreover, there is no other case that could establish definitively whether isolated genes are patentable or not in Canada. Since CHEO’s mission is saving lives, not killing abusive intellectual monopolies, it’s quite understandable that it was happy to accept this kind of pragmatic solution. But it’s also regrettable, since it means an opportunity to add to the momentum building against gene patents around the world has been lost.

Follow me @glynmoody on Twitter or, and +glynmoody on Google+

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