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« Patent Docs Author Testifies at Genetic Diagnostic Testing Hearing | Main | Webinars on AIA Inter Partes Proceedings »

February 16, 2012

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Comments

Kevin,

Nice job in summarizing the testimony at this hearing. And a nice job too on your testimony as to what needs to be considered in the area of "second opinion" genetic testing.

I'm sympathetic to Congresswoman Debbie Wasserman Schultz's plea as a breast cancer survivor. (I might even be inclined to consider permitting royalty-bearing licenses in the appropriate circumstance, especially if the research underlying the genetic testing involved federal funding.) But granting uncompensated compulsory licenses, or worse yet, making such genetic testing patent-ineligible (which some like the ACLU have pushed) will simply drive such testing "underground" (i.e., into being a "trade secret") as you point out, or simply make such genetic testing so unprofitable that no one will research and develop it; that would be a far worse situation.

As you also suggest, the proponents of exempting from infringement such genetic testing need to provide hard evidence/data that such an exemption is really necessary. What I've seen so far from such proponents is mere speculation, conjecture, supposition, belief, etc., without any data to support it. If you going to ask for such a drastic remedy (i.e., uncompensated compulsory licensing of someone else's IP) which is likely to be challenged as unconstitutional "taking," you better have the facts to support it.

Trade Secret genetic testing probably won't get reimbursed because the insurance companies won't be able to fully evaluate the scientific basis.

Au contraire, BG. I didn't say the test would not be completely validated; I said the identities of the genes involved would not be disclosed. If it can be shown that the chip works (abroad, if necessary), why do we need any other verification? After all, the basis for the effectiveness of aspirin was not elucidated until 80 years after it was first introduced.

Believe me, the American public would clamor for any validated test and the insurance companies would have no reason not to pay for it - particularly when a $3,000 test will avoid a $300,000 bill for cancer surgery and chemotherapy.

I don't advocate this position, mind you - I think the system we have has worked pretty well. But let's not assume that the kind of bans advocated by the ACLU, AMP, etc. will result in some golden age of "free" genetic diagnostics. Unless you want to take up Ms. Jorgenson on her offer and do it yourself. I would rather not.

Thanks for the comment.

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