Jorge L. Contreras- Commons Formation and Patent Deterrence

Commons Formation and Patent Deterrence:
Assessing the Genomics Experience
Jorge L. Contreras
American University - Washington College of Law
January 15, 2012
In 1996, the leaders of the multinational Human Genome Project (HGP) met in
Bermuda and agreed that all HGP DNA sequence data would be released to the public
within 24 hours after generation. These so-called Bermuda Principles arose from an early
recognition that efficient sharing of data would be necessary to coordinate activity among
the different sequencing centers working on the massive HGP. But project coordination
was not the only impetus motivating this unconventional and controversial requirement.
Project leaders also believed that the rapid release of data was necessary to accelerate
scientific research, medical discovery and the improvement of human health. Similarly,
many project leaders felt, as a matter of principle, that patents should not encumber DNA
sequence data. Accordingly, the rapid-release requirements engineered in Bermuda were
intended to deter patenting of sequence data, both by HGP researchers and by third
parties that might independently identify the same genetic data.
By most accounts, the successful sequencing of the human genome has
significantly advanced our understanding of human biology, disease and heredity. But
how effective were the HGP’s Bermuda Principles at deterring patents on the human
genome? Gene patents are currently the focus of significant public attention, and legal
cases involving patents on isolated DNA and disease-gene associations are marching
through the court systems of various countries. How can this be, if the entire human
genome was placed into the “public domain” by the conclusion of the HGP in 2001?
In this paper, we will analyze the strategies for patent deterrence embodied by the
Bermuda Principles and assess their effect on patent filings, both before, during and after
the HGP. Our analysis will utilize the 500+ DNA-based patents identified by Jensen and
Murray in their often-cited 2005 Science paper “Intellectual Property Landscape of the
Human Genome”. We will also review the evolution of genomic data release policies
following the conclusion of the HGP and assess the patent deterrent effects of these more
recent data release policies, as well as alternative patent-defeating approaches adopted by
private groups such as the SNP Consortium. Through this analysis, we hope to shed light
on the interplay between patents and scientific data more broadly, and to inform the
decisions of future policy makers contending with these difficult questions.