Myriad Genetics and the BRCA Patents in Europe: The Implications of the US Supreme Court Decision

Abstract

Biotech patents are perhaps the most controversial form of property, and the U.S. Supreme Court decision in 2013 in Association for Medical Pathology v. Myriad Genetics, which held that simply isolated DNA constitutes natural products, was applauded by many, particularly civil society groups and medical practitioners. From a legal perspective, the decision itself is brief and leaves much to be desired. Nevertheless, it is interesting to question what might be its potential impact on European research, the biotech industry, and patent law. Given the fact that the Biotech Directive was in large part passed in order to keep the European Union competitive with the United States, it is possible that the European Union has gained an advantage over the United States in terms of research and local industry. However, this is far from clear. At the same time, the Myriad decision may relight the fire surrounding the Biotech Directive, which was hotly debated and reluctantly implemented by the Netherlands, Germany, and France. This Article looks at patent law in Europe as it pertains to biotechnology before addressing what the possible implications may be of the U.S. Supreme Court Myriad decision on research, the biotech industry, and the policy debate in Europe.

Keywords: myriad genetics, gene patents, European Union, United States

JEL Classification: K11, K33, K39