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« Court Report | Main | PBS NewsHour Examines Oral Argument in AMP v. Myriad -- Patent Docs Author Kevin Noonan Appears on Program »

April 15, 2013

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Glad that you dedicated a post to this underreported topic. I feel little sympathy for those executives/scientists/academics/lawyers who for years assumed that Myriad's BRCA testing franchise was patent-protected (even though it wasn't), thereby "allowing" Myriad to build up this database, and now want to complain that somehow Myriad is violating antitrust law. It is true that in the early years, Myriad published the mutations (as you note, many are in the patents themselves). But it stopped doing this long ago, and from a business perspective, that was the right move. The entire Myriad "situation" lends credence to the "crazies" (e.g., Professor Kieff) that argue for a registration-style system for patents rather than an examination system. There's no other way to say this so I'll say it: anybody who was actually surprised that Prometheus was 9-0 shouldn't be allowed to have a law license. The true outrage is the fact that it took this long to finally get rid of these junk patents.

Kevin, you write: "it is undoubtedly the case that there are undisclosed mutations known only to Myriad."
And to the doctors and patients to whom Myriad discloses test results, is that not the case? So the complaint should not be that Myriad has been amassing secret data or is privatizing genetic information. The data are out there; they're not secret, just dispersed among hundreds of thousands of medical records. Only Myriad has them all in a convenient one-stop database, but that doesn't prevent anyone from recreating a similar datastore from the information Myriad has released. One can only wish Nussbaum success; he and his collaborators are doing the reasonable thing. So, to be very clear to the non-lawyers out there: Myriad's mutation data aren't trade secrets, because these data have been released, albeit piecemeal, to doctors and patients who are under no obligation to Myriad to keep them confidential. Myriad just doesn't make these data conveniently available from its own datastores for what it views as commercial competition. However much one might hate Myriad, their decision is not too different from what, say, Google's decision would be if asked to open its databases on user preferences.
I am much more worried about the basic idea that companies should be compelled to disclose competitively sensitive data, if they were able to generate such data only because of their patent position. I'm sure there are many companies that were able to amass commercially valuable databases as a result of their underlying patent position, say, in the telecommunications or e-commerce sectors who would be aghast at that idea.

Dear Moo:

I understand your point and welcome your clarification regarding the public nature of the information. Maybe that is the point: provided that Myriad does not restrict access to the information, then the advantage of having its database assembled is not enough to treat that information any differently. Just a thought.

Thanks for the comment.

Of course, if the Supreme Court in Prometheus hadn't barred it, Myriad could have gotten patent protection on the correlation of these new variations with breast cancer, who knows, and would have been incentivized to file an applicaton detailing all of these mutations and their associations with breast cancer. After 20 years, the info would be free for everyone's use, rather than the current situation, where Myriad has no incentive to release the info at all.

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