I’ve blogged here and here about the litigation involving Myriad’s patents on the BRCA1 and BRCA2 genes, which a district court recently invalidated. I recently wrote an article that relates to the subject. In it, I draw upon instances where patent holders have attempted to restrict analysis of their technology. In addition to the area of genetic testing, I discuss examples where companies have used patents to limit evaluation of radio frequency identification (RFID) used for secure access to buildings, and of agricultural biotechnology.
Unless existing law is used to protect such testing, I argue that the courts or Congress should adopt an exception to infringement, allowing for the use of a patented invention for quality assessment. This includes activities necessary to identify and analyze limitations and weaknesses of the patented invention. Such an exception would allow patients diagnosed with breast cancer to obtain a second opinion. It would permit computer security researchers to expose security flaws in RFID chips. And it would allow independent analysis of the environmental effects of genetically modified crops.
You can view the article here.