A recent filed by Myriad Genetics involving the alleged infringement of their controversial breast cancer screening tool has included the prestigious Toronto SickKids hospital as a co-plaintiff. This lawsuit has been a source of criticism for the hospital and has reinvigorated the debate on the merits of public-private research collaborations in health care innovation.

Aftermath of SCOTUS Ruling - Myriad Genetics Sues Archrival

This , the US Supreme Court rendered a landmark , ruling out the patentability of some genetic sequences in patents developed by Myriad Genetics for their breast cancer screening tests. (You can view some of the IPilogue’s extensive coverage of the international litigation around this issue , and .) The results of this decision and the invalidation of the Myriad patents were seen by many as a development that of breast cancer screening methods due to the possibility of cheap alternatives being produced without being hindered by patent licensing. A sound prediction, as , companies started releasing breast cancer screening tools at a lower cost than the Myriad products. A few weeks after the ruling, however, Myriad in the Utah District Court against Ambry Genetics, claiming that the company owned or licensed to Myriad that had not been a part of the US Supreme Court case. In response to the lawsuit, Ambry has recently Myriad for antitrust violations.

This case is interesting from a Canadian point of view since some of the patents at issue involve ownership agreements between Myriad and various public health organizations, . In the , it is stated that the public health organizations will lose "significant amounts of revenue" from lost royalties, and that the revenue stream from their ownership to date has brought in around $57 million. Although listing SickKids as a plaintiff in the lawsuit due to their ownership agreement, the story has nevertheless garnered . This lawsuit has been seen by some as an attack on affordable breast cancer screening for patients, with SickKids seemingly in a position that is opposite its role as a health care provider. Patent arrangements like the one between SickKids and Myriad can be seen as paradoxical; preventing patients from being able to access the medical discoveries that have been made possible by .

Public-Private Research Collaboration: A Complex Issue

Discussions arising from situations such as this ultimately stem from the relationship between public institutions and profit-seeking entities in health research collaboration. Analyses of the merits of such collaboration has reached conclusions in different fields and , but a recent seemed to suggest a statistically significant increase in pharmaceutical industry innovation from publically-funded scientific research.

Critics of these joint research ventures frequently cite the through a “tragedy of the anticommons” effect, where other research entities choose not to enter a field of innovation due to the fear of their production ultimately getting blocked by existing patents. Luigi Palombi, an Australian lawyer that has written a book about the Myriad breast cancer screening saga, criticized the SickKids incident and that “[i]t is our outrageous for any publicly funded research institution to be put in this situation” and that “[o]nce you have publicly funded institutions getting into bed with these guys, well then that raises a whole series of other questions and issues”. Other commentators, such as McGill University law professor Richard Gold, that "[t]here's always been a relationship obviously between industry and hospitals and universities. And it's not all bad because, of course, universities do basic research." Professor Gold also went on to state that he hopes public institutions “will be wiser in the way they set up their agreements in order to have a choice to whether to be involved in ligation". Although the majority of commentators seem to agree that SickKids is currently occupying an unfavourable position from its public involvement in the lawsuit, the debate on the merits of these joint health-care research ventures is certainly an unresolved issue.

The Future of Public-Private Health Research Collaboration in Canada

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In recent years, there has been a growing concern about the increasing levels of greenhouse gas emissions and their detrimental effect on the environment. To respond to this concern, countries have agreed to abide by world-wide abatement targets by reducing CO₂��emissions to a certain level.�� However, curbing greenhouse gas emissions in developing countries has been a challenging task.�� It has been argued that strong IP rights grant developed countries a monopoly over carbon abatement technology (CAT), which raises the price and reduces the access to such technology. A recent , however, concluded that strong IP rights should not be blamed for the limited access to climate change technology in low-income economies.

In particular, the report estimated that between 1998 and 2008 more than 215,000 CAT patents were registered worldwide, 10% of which were in emerging economies, 0.1% in developing countries and the rest in developed countries. It could be argued that the substantial share of patents held by developed countries could put monopolistic pressures on the price of CAT and thus impede the transfer of such technology to low-income countries. However, the report noted that in most developed countries there is more than one company that offers CAT, which allows for competition to significantly drive down the price.

The report also concluded that developing countries hold very few patents for CAT and ownership is in the hands of very few firms. This uneven distribution, however, does not demonstrate that strong IP protection drives competition out and CAT’s prices up. It probably means that the size of the market in the least developed countries is currently too small to allow for more competition. This might be for several reasons.

Firstly, for CAT to be implemented, a certain infrastructure must be in place. This requires additional investment, which developing countries can not afford. Secondly, many developing countries (such as Brazil, Russia and India) set barriers to trade in the form of tariffs that discourage developed or emerging economies from transfering technology. Thirdly, know-how (the information that helps someone��to operate and even more efficiently utilize a technology) might be very important when a technology is transferred. The transfer of knowledge or know-how requires that the recipient be able to make use of the knowledge and information. This may only be achieved when the recipient possess a considerable level of experience with and education in that particular technology. This level of expertise might be too expensive for the developing countries. Fourthly, governments in developing countries sometimes award subsidies on the consumption of fossil fuels, which reduces the incentive to adopt CAT. Lastly, in a recent study by Branstetter, it was demonstrated that US multinational companies are more willing to transfer technology to countries where their IP rights are well protected. Thus, strong IP protection is crucial rather than detrimental to technology transfer in the developing world.

In short, the report provides a different perspective on why developing countries are unable to reduce greenhouse gas emissions. Strong IP rights do not reduce access to CAT and, in fact, might encourage technology transfer.����

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