Impact of gene patents on the development of molecular diagnostics

There is a widely held view that gene patents in particular and patents in general, because of the exclusionary rights that they provide, are inhibiting the development of and access to critical molecular diagnostic testing. This is a highly relevant issue for healthcare delivery as we move towards personalized medicine, which relies heavily on genetic testing to tailor treatments that are specific for individual characteristics. Critics of the patent system hope to void or diminish the exclusionary aspect of patents by removing genes from the definition of what is patentable, by increasing the number of activities that fall within the research use exemption, or by compelling patent holders to license their rights non-exclusively. Although a re-examination of what constitutes patentable subject matter is an important undertaking, narrowing the definition of patentable subject matter is at best only a partial solution. Erosion of the patent system through compulsory licensing or expansion of the research use exemption runs the risk of destroying important incentives without also fully addressing the problem. To promote solutions that truly address the issues, this article distinguishes documented facts from perceptions and suggests alternative approaches to explore. The author believes that efforts to undermine the patent system are simply counterproductive and that time would be better spent addressing the real issues that lie within molecular diagnostic development.