As all the novelties, the biotechnological and genetic industry causes problems of intellectual property. Moreover, the genes are very special things, not only because they touch to the living, but because they are carrying hopes (new therapies, drugs...) and fears too (protection of the Human body, protection of the collected data...).
The main problem is to find an equilibrium between the incentive to innovate and the diffusion of the information and the knowledge in the sensible sector of the genetic. Thus, the authority tried to insert the problem of the patentability of the living (in general) and genes (in particular) in the preexistent intellectual property protection system: the patents system.
Sommaire du mémoire
Chapter 1: the terms: Patents, genes and their links
1.1. The patent
1.2. The gene: a brief historic of the patentability of genes
1.3. A concrete case: Myriad Genetics and the Breast Cancer genes 1 & 2 .
Chapter 2: the gene and the patent in the light of the economic analysis
2.1. From Economic arguments in favor of the patentability of genes.
2.1.1. Patents and incentives
2.1.2. Patents and diffusion of the information/ knowledge
2.1.3. Patents, innovation and economic growth
2.2. ...To the economic arguments against the patentability of genes
2.2.1. Monopoly and the extent of the patents
2.2.2. The Tragedy of the Anticommons and the transaction costs
2.2.3. The genetic industry and the cumulative innovations theory
2.3. For a new form of protection of the intellectual property?
Chapter 3: The Ethic, the Law, the Society: What position with the patentability of genes?
3.1. An ethical and legal point
3.1.1. What about the legislations?
3.1.2. The bioethics laws
3.1.3. The distinction between invention and discovery: a look at the conditions for granting patents
3.2. What social consequences?
3.2.1. Genetic industry and developing countries: the bio-piracy
3.2.2. Patents, biotechnologies and health
A.1. A simply model of patent race
A.2. The defense of BIO against the Anticommons argument
Extraits du mémoire
[...] Here, the patent is a good thing because it may lead an expansion cycle of the economy. However, this theory is challenged today because the cycle theory isn't verified in practice. Today, the innovation process (help by the patent) must be treated in a special view: the endogenous growth theory. According to Paul Romer, the ideas create other ideas (cumulative character of the knowledge) and the innovation is the most important growth factor It's valid for the second version of Coca Cola. [...]
[...] Bradford, Lawrence H. Summers (August 2001): Economy?: Questions, and Speculations?, available on Background, http://econ161.berkeley.edu/Econ_Articles/summersjh2001.pdf University of Toulouse Capitole 32 Duncan David Ewing (May 27, 2OO9): ?What's the Point in Patenting Technology Review, MIT European Patent Office: ?Définition de la mission de l'Office?, available on http://documents.epo.org/projects/babylon/eponet.nsf/0/87f4394576ec13aec125723d005a8b0 b/$file/myriad_presspack_fr.pdf Haseltine A. William (September 2000): Case for Gene Patents?, Technology Review, MIT Huriet Claude, Dr Dominique Stoppa-Lyonnet (June 26, 2007): brevetabilité du vivant?, Curie Institute Joly Yann (January Lex 2005): Biotechnologies Montreal, et brevets: on le cas de la pharmacogénomique?, Electronica, available http://www.lex- electronica.org/articles/v10-2/joly.pdf Kushan Jeffrey P. [...]
[...] Then, the problem is the modality of access to the drugs in the case of an exclusive monopoly. As the price will be higher, the poorest patients will be excluded of the utilization of the innovation. It's possible to create an insurance system to allow the access for all. This question leads a lot of problems like in South Africa where thirty-three laboratories have been dragged to court for too high prices. A contrario, Brazil has broken patents on drugs or therapies to allow access for all but the firms not agree and this may be bad for the economy. [...]
[...] That's why we will see some examples. To resolve the problems of increasing transaction costs, it's possible to create cross licenses between different firms. The firms will be able to exchange licenses: That will solve the problem of the tangle of the patents, but the firms will preserve the incentives while allowing the two firms to use the innovations of the other. Thus, the two firms win a lot of time, of money and avoid a too strong deceleration of the research. [...]
[...] The second element is the diffusion of the information. This one ensures the perenniality of the research in the future but it seems in contradiction with the incentives to innovate and the appropriation of the knowledge by the patent. So, We find again the problem diffusion/appropriation of the knowledge Patents and incentives The product patented is more of a gene; it's the knowledge (with an industrial application). This one is immaterial and it has the characteristic of a public good (non exclusivity and non rivalry): it's easily duplicable. [...]