Reversing Myriad outright would gut disease research – the COVID experience proves

Finally, opponents raise a salient point on the effect of gene patents as they relate to research, particularly in light of the recent COVID-19 pandemic.313 As noted, research that infringes on patents can sometimes defeat claims of infringement through the research use exception.314 However, courts have construed this exception narrowly, meaning that even basic research into a patented gene by a nonprofit group, such as a university, might still be considered infringement.315 Although several studies have found that gene patents did not actually have a strong impact on follow-on innovation,316 the concern still exists that patent holders who aggressively enforce their patents might stymie research into important genetic information. This concern is particularly acute given the recent COVID-19 pandemic and the fact that many who were on the forefront of researching SARS-CoV-2 were companies attempting to profit through the development of tests and vaccines.317 Clearly, some protection must be afforded to safeguard research into topics of global significance like viral genomes. This concern weighs in favor of a more limited scope of viable subject matter for gene patents than was previously enjoyed before Myriad.

In sum, any future regime of gene patent eligibility in the United States must address the dual concerns of encouraging investments by promoting economic stability and avoiding placing unreasonable limits on genetic research. Properly balancing these concerns will ultimately prove vital to the success of any future gene patent regime.