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August 09, 2022


Thanks as usual to Kevin for the thoughtful and cogent responses. It will take more time to respond fully. I will, however, note that the data cited by Kevin is mostly old, although I always respect the work of Sampat and Williams. But if we are addressing old data, the Walsh, Arora, Cohen study from 2003 showed widespread infringement (at least by researchers). As summarized by the NAS, "Significantly, 'firms and other institutions have developed a number of "working solutions" that limit the effects of the intellectual property complexities
that exist,' including 'fairly pervasive infringement of patents in the course of laboratory research at the pre-product stage.'” Obviously, eliminating such "fairly pervasive" illegal infringement by making it legal would not have changed investment behavior. Further, how much it applied to diagnostics provision -- rather than R&D that went into diagnostics use -- was not addressed. How much those conditions had changed just prior to Myriad, Mayo, and Alice also remains uncertain. But it puts a very different spin on the conclusion of Sampat and Williams that human DNA patents did not adversely affect follow-on R&D. So as usual, there is a much more complicated story to tell. But at least Kevin has provided responses purporting to address both investment declines and actual innovation declines. Thanks!

“Kevin posits that Mayo (and implicitly Myriad) have adversely affected innovation in diagnostic methods… [b]ut the data shown below tell a different story in regard to whether the restrictions on eligibility have been bad for innovation.”

At the risk of betraying my appalling density, what “data” about innovation are you referencing? The quoted selection from AMP offers no data about innovation. The cited survey results speak to perceptions about freedom to operate, not innovation. What am I missing here?

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