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.

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Filed Under: canada, gene patents, patents


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  • icon
    Ninja (profile), 5 Apr 2016 @ 6:01am

    I wonder, if they patent genes that are on my genome will I have to pay to live? What if they have round corners? Should I pay Apple or the lab?

    On a more serious note, patenting genes is as absurd as patenting sequences of 0's and 1's (software). But never mind.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2016 @ 8:12am

      Re:

      The answer to your question is "no", but such an answer does not fit well with the missinformation the author would have you believe.

      reply to this | link to this | view in chronology ]

      • identicon
        JEDIDIAH, 5 Apr 2016 @ 11:39am

        They're the real "pirates".

        No, they will just continue to act as a parasite taking funds away from those that require medical care. They will do real harm by reducing availability and quality of services.

        reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 5 Apr 2016 @ 6:18pm

        Re: Re:

        If you are aware of anything the author wrote that is misinformation, perhaps you should consider actually saying what it is that is wrong.

        Failing to do that means that you're just slinging insults and saying nothing.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 5 Apr 2016 @ 9:01pm

          Re: Re: Re:

          The author misstates the holding in Myriad, something only too clear from reading the first paragraph of Justice Thomas' opinion on behalf of a unanimous court. Some aspects of "gene" inventions were struck down, but others were upheld, something that the author neglected to mention.

          reply to this | link to this | view in chronology ]

  • identicon
    Chris Brand, 5 Apr 2016 @ 9:43am

    Saving lives

    They may well have saved more lives if they'd kept fighting and invalidated the entire class of patents.

    reply to this | link to this | view in chronology ]


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