Preemptive patenting, human genomics, and the US biotechnology sector: balancing intellectual property rights with societal welfare

Abstract Within the biotechnology sector of the US economy, aggressive patenting, i.e. preemptive patenting, of human genomic research results are practiced by private-sector firms, the academic community, and non-profit organizations. Preemptive patenting has traditionally been practiced by the private sector as a competitive strategy, being driven by economic considerations. Recently, academics and patients/consumers have instituted preemptive patenting strategies as a way of ensuring access to genomic sequences for, respectively, research study purposes and life-enhancing access to diagnostic gene testing. To reduce this non-economic motivation for preemptive patenting by these nontraditional competitors, it is recommended that the biotechnology industry initiate a strategy of its own which will: (1) relax firm patent enforcement of genomic sequences that are essential for academic researchers to use in their studies; and (2) provide for a ‘means-test’ approach that incorporates a ‘staggered’ fee-schedule for academic researchers to charge their subjects, i.e. patients, for gene tests and diagnostic results.