Embryonic stem cell ("hESC") research, WARF v. Geron, Lessons for Canada
Four days after President George W. Bush addressed America regarding human embryonic stem cell ("hESC") research in August 2001, a lawsuit was filed by the Wisconsin Alumni Research Foundation (“WARF”) against Geron Corporation ("Geron"). WARF holds patents in respect of hESC technologies pioneered by James Thomson. The parties were unable to negotiate licences for additional hESC types. In January 2002, WARF and Geron announced that a new agreement had been reached. This paper examines the antecedent question: should the hESC technologies have been patentable in the first place? The reason for pursuing hESC research appears to be the possibility to improve human health. But hESC research also carries great economic potential. Express prioritization of these dual benefits is lacking. The practice of patenting hESC technologies provides a clue. The empirical support for the proposition that patent rights increase scientific innovation is minimal. Two arguments favour the status quo: 1.the researchers who 'invent' the technologies are entitled to a property right (Lockean argument); and, 2. circumscribing access to secure investment is acceptable because an overall benefit is produced (utilitarian argument). However, both arguments rest on dubious premises. Most notably, the "tragedy of the anticommons", added transaction costs, and depreciated scientific creativity undermine the claim that a net benefit will accrue. Preserving the current regime therefore attaches higher priority to commercial interests. Two responses are left: modifying the patent system or placing hESC technologies in the public domain. Only the latter will ensure that the potential health benefits of hESC research are the top priority.
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Matthew Herder, "In (or Out of) the Marketplace of Ideas: WARF v. Geron and Lessons for Canada" (2002) 11 Dal J Leg Stud 196.