Issues raised by lawsuit that prevents cost savings for genetic tests

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The other day, I was featured on MedScape discussing my thoughts about an important issue raised by a July 15, 2013 blog post by The Washington Post. The blog titled “Why Are Universities Trying to Limit Access to Breast Cancer Tests?” focused on a lawsuit filed by Myriad Genetics against another company on the grounds of patent infringement.

The suit was filed in order to prevent the latter company from introducing a BRCA test to the market which costs significantly less than those currently available. The Supreme Court ruled against Myriad on the grounds that it cannot have a patent on the natural BRCA gene. The Court did, however, leave the door open for Myriad by saying that other patents are permissible.

Though not mentioned in The Post article, anyone familiar with the competitive business world should not find the lawsuit uncommon or surprising as a modern business tactic. What is troublesome about this case are those involved.

The University of Pennsylvania and the University of Utah joined Myriad in the suit, stating they have patented products licensed to Myriad. The Post article focuses on the decision of these educational institutions to become involved in the lawsuit, thus aiding in the prevention of a less expensive and more accessible life-saving cancer test to be released to the public.

Putting aside any personal opinions about the details of the lawsuit, and assuming that The Post article is accurate, the basis of this idea is a serious issue for wider discussion.

The two universities involved in the lawsuit are academic institutions: one public and one private, not-for-profit. Being such, they are granted exemption from some or all taxes. We can assume, then, that they have tax-exempt bonds in addition to considerable funding from the National Institutes of Health, some of which is likely funded by the universities’ commercial ventures, and the remainder of which comes from the public. And, therein lies the issue: the public funding of these universities is being used to defy what is in the public’s best interest.

The public interest is always to bring less expensive therapies and tests to the market and these universities, funded by the public, are attempting to prevent just that. This should concern almost anyone who is not profiting from the more expensive tests. Congress should discuss the appropriateness of public universities, which undoubtedly use public funds for commercial ventures such as licensing patents to Myriad Genetics, joining similar lawsuits.

I would like to elevate this discussion to a serious call to action for Congress to give serious thought to the issues raised by this lawsuit, and others like it, and for publicly-funded institutions to rectify their actions. I encourage you to read this interesting blog from The Washington Post, to follow the story, and to come to your own conclusions. I am concerned and hope to hear more public discourse about these issues.

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