December 2001

Doctors without Patents

Continued from page 1

By Seth Shulman

William Hockett, a Myriad spokesperson, dismisses such claims, saying, "Patents allow new technology to develop-in this case, very high quality tests." Hockett notes that his firm doesn't license its patent in order to offer "the highest-quality tests possible." Quality control is paramount, he says, because screening tests influence critical decisions on patient care. Hockett also says it is "absurd" to charge that Myriad wants to stifle breast cancer research. He stresses that his firm is a major sponsor of such research, in part because-given the strength of its patent portfolio-"it benefits us directly."

But Myriad's statements do little to alter the real issue: namely, the clash between public health and proprietary claims on medical know-how. Traditionally, most patent systems distinguished between medical devices-like pacemakers-which can be patented, and medical procedures, such as the Heimlich maneuver, which have usually been freely shared by medical practitioners. Diagnostic tests, and even many drugs and vaccines, have fallen into an uncomfortable gray area: on the one hand they require some manufacturing (a feature often linked with patentability), while on the other hand they result increasingly from advances in the conceptual medical know-how that has been shared among doctors for at least the 2,000-odd years the Hippocratic oath has existed.

With the exception of the United States, some 80 countries, including every European Union nation, already exempt medical procedures from intellectual-property protection in order to safeguard the dissemination of new medical techniques and knowledge. As Europe grapples with diagnostic tests based on gene patenting, the gray area of useful medical knowledge grows. The Curie Institute's legal action is an important protest. But more proactive work is needed to clarify appropriate limits on similar health-care claims. Ideally, a panel of stakeholders under the auspices of an international body like the World Health Organization ought to tackle the job. Without such a group, we will likely see many divisive fights like this one-needlessly restricting medical knowledge and potentially undermining the Hippocratic oath.