Patents don’t impede innovation – genetics studies prove

3. Myriad Did Not Have as Profound an Impact on Research as Was Speculated

The impetus for the plaintiffs to bring suit in Myriad was partially due to concerns over the effect gene patents had on research related to patented genes.216 The plaintiffs’ contention, among other things, was that gene patents like those held by Myriad limited academic investigation into the underlying patented material.217 Several studies after Myriad have analyzed the problem of what effect gene patents had on research.

In 2019, Professors Bhaven Sampat and Heidi Williams performed a comprehensive study in which they asked if gene patents actually suppressed follow-on innovations.218 They looked at both accepted and rejected gene patent applications from 2000 to 2013 and tracked subsequent academic and commercial uses of the corresponding genes.219 Professors Sampat and Williams found that patenting did not seem to have a substantial effect on the rate that a gene was used for research or commercial purposes.220 They also found that most follow-on innovations were performed by someone other than the patent holder, suggesting that, before Myriad, licensing agreements worked well enough to provide access to patented genetic information.221 In sum, the authors concluded that gene patents did not have as strong an inhibitory effect on follow-on innovations as assumed by the Court in Myriad. 222

These results have recently been corroborated by Professors Janet Freilich and Sepehr Shahshahani.223 In their study, the authors replicated the analysis performed by Professors Sampat and Williams while further disaggregating follow-on innovations into those that infringed on existing gene patents and those that did not.224 They found that 87 percent of follow-on innovations did not infringe existing patents.225 They further found that gene patents that were not expiring soon had a positive correlation with non-infringing followon innovation, implying that patenting a gene might have actually increased research into that gene by others.226 This study demonstrated that gene patents had a relatively limited effect on follow-on innovation, as most follow-on innovations did not infringe and thus were not affected by the patent.227

Collectively, these studies belie the notion that gene patents like those in Myriad had a significant inhibitory effect on subsequent research. Instead, they suggest that, in practice, gene patents had a negligible impact on outside research into the patented genes.