Patent Reality Check: The Hypocrisy of Duke University on Patents
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
Follow Gene on Twitter @IPWatchdog
Posted: Apr 27, 2010 @ 3:37 pm
Almost two weeks ago, on Thursday, April 15, 2010, the Duke Institute for Genome Science & Policy issued a study that explained that it was their learned view that “exclusive licenses to gene patents… do more to block competition in the gene testing market than to spur the development of new technologies…” See Patents Block Competition, Slow Innovation in Gene Testing. In the news report published by Duke University, Robert Cook-Deegan, director of the IGSP Center for Genome Ethics, Law & Policy, is quoted saying that exclusive licenses, and presumably patents, are valuable for developing drugs and biologics that would not otherwise be developed without such protections. Cook-Deegan then laments the fact that patent protection is afforded to genes and explains that broad gene patent claims do such harm to innovation and do not help patients. I wonder if that includes the incredibly broad gene patents owned by Duke University?
There are few things in this world that irritate me more than hypocrisy. I know to some extent that it is probably true to say that everyone exhibits signs of hypocrisy on occasion, but it is a special level of hypocrisy when you come out swinging at a patent system, have your study thrown about the Internet and popular press as the battle cry to cut down the patent system and then it comes to light that since 1976 you have 716 issued US patents, 266 of which in some way, shape or form relate to genetics and 156 of which relate in some way, shape or form relate to both genetics AND cancer. Duke University… please approach the nearest mirror and look into said mirror. What is staring back at you is a University with an agenda. You are vilifying Myriad Genetics for the same behavior you have engaged in. In the dictionary the term “hypocrisy” should say “see Duke University re: gene patents and innovation in general.”
To continue down the “exposing Duke hypocrisy trail,” why don’t we take a look at a sampling of Duke University patents and innovations that Duke University is seeking to lock up, or keep locked up, with patents that are obviously blocking innovation and are really a part of the problem.
- Materials and methods relating to the identification and sequencing of the BRCA2 cancer susceptibility gene and uses thereof
US Patent No. 6,045,997
Issued April 4, 2000
Abstract: The identification and sequencing of the BRCA2 gene is disclosed as well as the amino acid sequence of the corresponding BRCA2 polypeptides. BRCA2 alleles including those with mutations in the BRCA2 gene which are associated with a predisposition to develop cancer, especially breast and ovarian cancer are also disclosed. The present invention further relates to polypeptides encoded by the above nucleic acid. The present invention further relates to uses of much BRCA2 nucleic acid and BRCA2 polypeptides, in particular in the diagnostic, prognostic or therapeutic treatment of cancer.
Claim 1: A nucleic acid molecule consisting of the sequence set forth in SEQ ID NO:1, SEQ ID NO:2, SEQ ID NO:3, SEQ ID NO:4, SEQ ID NO:5, SEQ ID NO:6, SEQ ID NO:7, SEQ ID NO:8, SEQ ID NO:9, SEQ ID NO:10, SEQ ID NO:11, SEQ ID NO:12, SEQ ID NO:13, or SEQ ID NO:15, or portion of said sequence of at least 20 consecutive bases.
- Four genetic tumor markers specific for human glioblastoma
US Patent No. 7,115,265
Issued October 6, 2006
Abstract: ABCC3, GPNMB, NNMT, and SEC61.gamma. are expressed at higher levels in glioblastoma than in normal brain tissue. These four genes and their expression products are useful for diagnosing and treating glioblastoma and for identifying potential anticancer drugs.
- Estrogen receptor modulators
US Patent No. 7,238,793
Issued July 3, 2007
Abstract: The present invention relates to an estrogen receptor co-regulator and to antibodies specific therefor. The invention further relates to methods of screening test compounds for their suitability as estrogen receptor modulators and to methods of using same in disease treatment.
Claim 1: An isolated nucleic acid encoding a mammalian repressor of tamoxifen transcriptional activity (RTA) protein, wherein said RTA protein has the amino acid sequence set forth in FIG. 1 (SEQ ID NO:1).
- Gene product over expressed in cancer cells
US Patent No. 6,350,615
Issued February 26, 2002
Abstract: The present invention relates, in general, to a cancer-related protein and to a nucleic acid sequence encoding same. In particular, the invention relates to a protein over expressed in certain neoplastic cells, including breast and ovarian cancer cells, to its encoding sequence, and to diagnostic and treatment methodologies based on same. See also US Patent 7,022,820, which shares at least a common Abstract.
- New HIV test to predict drug resistance
Researchers at Duke University Medical Center have developed a highly sensitive test for identifying which drug-resistant strains of HIV are harbored in a patient’s bloodstream. As of January 1, 2007, Duke reported that it had “filed for a provisional patent on the technology, and the Duke Office of Licensing & Ventures is considering various options to commercialize this technology.”
- Genes involved in the pathogenesis of anxiety disorders including OCD
The Duke promotional material for this innovation explains that the global market for treatments is $4.5 billion and only 50% of patients currently respond to treatment. It further explains that patents are pending and clearly is trying to promote this technology in a way that seeks to prey upon the greediness of corporate America.
I could go on… and on… and on… and on, but from this representative list above you start to get a fuller picture of the level of hypocrisy involved at Duke University. In fact, if you actually read the above text associated with these Duke University owned innovations you see that there is not only hypocrisy involved, but there is financially self serving hypocrisy no less. For example, while Duke University throws Myriad Genetics under the bus over its patents on the BRCA1 and BRCA2 genes tied to breast and ovarian cancer, Duke has its own patent on identification and sequencing of the BRCA2 cancer susceptibility gene (see #1 above). Do you suppose Duke is upset that the Myriad Genetics technology is more advanced and desirable than its own? What a coincidence don’t you think? Talk about intellectual dishonesty!
Not only does Duke own a patent on the BRCA2 cancer susceptibility gene, but it also owns a patent on an isolated nucleic acid protein (see #3 above). But according to the final decision in the ACLU challenge to the Myriad Genetics patent isolation is not enough to make something patentable. So I guess Duke University can kiss this patent, and the many others like it, goodbye.
So the truth of the matter is that Duke University has many patents, including many gene patents, and is locking up innovation in numerous areas, including research into breast and ovarian cancer, research into obsessive compulsive disorder and into HIV-AIDS. A quick glance through the Duke University patent portfolio shows all kinds of innovation blocking relating to all kinds of medical devices and treatments. Yet, surprisingly their ire is raised by Myriad Genetics who just so happens to own the rights to competing technology. How convenient! Perhaps Duke should lead by example rather than engage in the hypocritical charade of “do as I say, not as I do.”
It is impossible not to notice that Duke University says one thing and does another. If they are uncomfortable with the patenting of basic research then why are they doing it? Why are they seeking to exploit the innovations developed at the University? According to reports they are not particularly good at deriving revenue from their innovations. In fact, in 2001 Duke ranked 22nd for total sponsored research expenditures and 27th for adjusted gross licensing income received. During FY 2001 Duke reported an income of about $5.6 million, with a total of 116 patents were filed and with only 50 patents being issued. See Duke lags behind peers in revenue from inventions.
So excuse me for noticing that not only is Duke University engaged in an extraordinarily hypocritical propaganda mission, but they are not even good at exploiting their own innovations. Someone please tell me why then they continue to block research, development and commercialization? What possible justification can their be for innovation blocking (their charge not mine) and doing such a poor job that revenue is hardly worth the extraordinarily negative effect of blocking research?
Lets put this into perspective. The Duke University budget for 2001-2002 was $1.183 billion. See Trustees Vote Overall Budget of $1.1 Billion. The Duke budget has since ballooned to $1.8 billion for 2009-2010. See Trustees Approve Flat 2009-10 Budget. So if Duke cannot get more than a few million a year from their innovations, and they admit that their patents like the patents of everyone else block innovation and research, at least in the gene patent space, why don’t they just do the right thing and donate their patents to the public? Why don’t they put their money where their mouth is? Why do must they continue to down the unsuccessful path they are following while at the same time destroying innovation and research?
Perhaps Duke University should take a lesson from Cook-Deegan, who says:
In the end, we must ask ourselves whether a given policy is ultimately in the best interest of patients. After all, although the patent system certainly seeks to harness business models and economic self-interest, it does so for the express purpose of furthering ‘progress in science and the useful arts’ and not for the purpose of generating profits.
Perhaps Duke should concern itself with its own affairs, lead by example and not be so worried about generating profits, particularly when they are patenting isolated nature. They don’t seem particularly well versed at generating revenue from their innovations so it is downright mean to so recklessly interfere with innovation and research into such important areas like breast cancer and HIV-AIDS.
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.