The Myriad decision blocked patent thickets in the biotech industry – it’s necessary for overall innovation

An additional argument against gene patenting relates to the phenomenon known as patent thickets, which are “dense web[s] of overlapping intellectual property rights that a company must hack its way through in order to actually commercialize new technology,” typically by obtaining licenses from one or more patent owners.160 A patent thicket in the industry often involves a strategy of filing numerous patent applications (often continuation applications) for essentially the same invention with minor improvements or modifications to extend the duration of patent protection for a product.161 In the case of Myriad’s patent thicket, the company obtained thirteen patents:

[C]overing different aspects of the BRCA1 and BRCA2 genes, including their DNA sequences, the sequences of smaller DNA segments contained within the genes, the principal variants associated with increased cancer risk, methods of locating the genes, and use of the genes as diagnostic tools and screens for the development of drugs.162

The Myriad decision helps to discourage stagnating research and development efforts that would have otherwise occurred because competitors can now actively research BRCA in the absence of exclusive patents locking it up.163 Additionally, foreclosing human genes as patent-eligible subject matter definitively deprives entities of the ability to create patent thickets around human genes,164 which has the effect of forcing additional creativity and innovation on the part of researchers from all sides to arrive at patent-eligible inventions. Patent thickets are problematic because it is always easier for an entity to file another patent application and prosecute it than to make another groundbreaking discovery or develop another blockbuster product.165 Thus, the Myriad decision against gene patenting may actually stimulate and encourage research and innovation because the holding discourages patent holders from becoming complacent with the intellectual property protection that they currently have on an invention.