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article imageOp-Ed: Gene patents and old laws – UCLA/ MIT dispute shows the faults

By Paul Wallis     May 11, 2015 in Science
Sydney - Gene editing is as fundamental as the expression itself. It’s the new horizon plus of genetic science. It’s also right in the middle of yet another patent battle. The “law vs. science” issue needs to be shut down, for everyone’s sake.
Gene editing is also a case in point regarding the issue of high value patents. In the present situation, UCLA and Broad/MIT are engaged in a dispute regarding a suite of patents related to DNA editing.
This science is far too important for nitpicking and tedious, costly legal gymnastics. It includes the possibility of permanent genetic modifications, cures for disease, who knows, maybe designer T cells for the human immune system, and more. Gene editing, aka germline editing, is thousands of pieces of string of undetermined length, and it’s going to be the next step up for biological science.
The problem is that whatever the situation regarding research and entitlements, gene patent law is now a problem of itself. This isn’t the usual, obnoxious patenting of diseases nobody invented. This is the patenting of real science, and patent problems are potential disabling agents for research.
To explain –
1. Scientists and institutions commit a lot of time and money to research.
2. The returns on this research are usually valuable patents, or supposed to be.
3. If the patent rights aren’t delivered, the researchers could lose considerable value.
4. Further research could be delayed or terminated because of lack of returns.
5. Complex IP issues can also tangle up the value of patents. (If new Process A uses Patent B, what rights, if any, do the owners of Patent B have over a patent for process A?)
6. What are the likely challenges to any given patent?
7. If patent rights aren’t freed up, a further cycle of expensive problems, like compensation after an adverse finding, emerges.
8. Legal issues can easily prevent new tech getting in to the market.
This is a general risk to research. It’s useless. It has to go. If scientists are being relatively civilized about the issues, the corporate world isn’t, and the academic world has to consider bottom line values. Research budgets aren’t usually unlimited. Do you commit big money and time to a nebulous, potentially highly expensive area of IP issues? Do you crash part of the budget on a multi-million dollar legal case that drags on for years with no guarantee of success? If there’s anything good about this situation, it’s well hidden.
The good news, such as it is, in this case is that some real heavyweights in research are involved in genetic editing. UCLA and MIT don’t need to be told about patent issues. They certainly don’t need to be advised regarding patent values and the cost of disputes.
Both will be well aware that a legal situation in which any few lines of code can become a lawsuit is ridiculously unworkable. There may be a solution. If you’ve ever done mediation, you’ll know that the easiest, and quickest, way of mediating a dispute is to deliver values to both parties.
In the case of patents, this would in theory reduce the risk of loss and damage to the parties. It would also eliminate expensive legal bills and absurd amounts of time usage. With regard to gene editing, it’s unclear who owns exactly what from media information, but the two patent applications clearly overlap in some areas.
So, a suggestion – Redefine the patents and patent applications into a mutually acceptable form. Settle the dispute quickly, and remove the grey areas. Grant reciprocal rights to the other party? Simply settle? There are a lot of possibilities.
As you can see, this isn’t an easy or necessarily simple fix, but it is a fix of sorts. There are multiple patents involved, and it could at least remove some of them from the logjam.
The bottom line here is that the patent process is crucial to science and research. The more complex the process becomes, the more minefields researchers have to navigate. Years of wasted work and money isn’t an acceptable outcome for anyone. The best solutions will have to prevent that scenario.
It might also be advisable if the US Patent and Trademarks Office considers these issues in terms of their effects on the commercial viability of US patents as a whole. Modern science is all about keeping up with itself. New patents in similar areas are quite common. Turning the Patent Office in to a dead letter handling area for major science isn’t an inspiring option.
Is it possible to manage concurrent patents in the way described above? Can the Patent Office identify issues, and create a compromise without yet another legal millstone around research?
The fact is that old laws are obstructing new science. The future can’t be built on “compulsory lawsuits”. It sure as hell can’t be built on new processes and products tangled up for years.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
More about Gene editing, Jennifer A Doudna, Mit, UCLA, broad institute
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