Evidence relating to the cost-effectiveness in direct harm to those affected; the result of medical genetic services should play an ing social harm and actual discrimination important role in health resource (in marriage for example) create indirect prioritization; however medications errors pictures levaquin 250 mg fast delivery, assumptions used barriers to accessing genetic services in cost-effectiveness analysis and interpre within the community medicine 3605 order genuine levaquin. Such barriers un tation of the data generated by such analy justly restrict access to genetic services and ses must be balanced against issues of eq therefore reduce the effectiveness of test uity and distributive justice treatment 2 degree burns 500mg levaquin with amex. Education can be a key tool in mini used to ensure public endorsement of dif mizing stigmatization; while regulation ficult decisions about rationing health care may be needed to combat discrimination symptoms kidney failure buy levaquin 750 mg cheap. To ensure that health professionals have an adequate understanding of genetics and 5. Genetic testing and screening programmes genetic services, national governments should be supported by public education should require that genetics is a signifi and genetic counselling. Participation in all genetic testing and opportunities to access continuing educa screening programmes should be volun tion to update their knowledge about ge tary. Properly informed consent is only netics, available medical genetic services, obtained if the person (1) understands the and the relevant ethical, legal, social and human rights issues. Privacy, confidentiality and anti-discrimi genetic services in a manner that is cultur nation regulations are necessary measures ally acceptable and maximizes the health to protect patients rights and safeguard benefit to patients. As there is often a discrepancy between law Genetic counselling or policy and practice, national govern iii. It is the responsibility of national govern ments should guarantee that these regula ments to ensure that genetic testing and tions have appropriate enforcement screening programmes have trained ge mechanisms to ensure that they are put into netic counsellors available to provide ge effect. Due to the significant shortages of genetic sary component of effective genetic test counsellors in developing countries, short ing and screening services, the interna term courses should be implemented as an tional community should provide techni interim measure to increase capacity in cal assistance to build capacity, not just in genetic counselling. These should be di medical genetics but also in public policy rected at existing primary health care and legislative drafting. Graduate pro grammes in genetic counselling, though the accepted standard in developed coun ix. In order to foster patient well-being and tries, are unlikely to be feasible for many protect patient safety, national govern developing countries in the short to me ments should establish: dium term. The international organizations, in col (addressing analytic validity, clinical va laboration with civil society and relevant lidity and clinical utility) for genetic tests; experts, should develop guidelines speci fying the minimum skills required for ge · regulations requiring genetic counsel netic counselling to assist developing coun ling and informed consent for genetic tries in designing short-term training in testing and screening; and genetic counselling in order to scale-up local capacity. Patient-support organizations are a valu able resource and support groups should x. National governments should ensure that be encouraged to work alongside medical both publicly and privately provided ge professionals and genetic counsellors; netic services are governed by appropri however, support organizations should not ate regulations regarding informed con be viewed as an alternative to genetic coun sent, genetic counselling and quality as selling, which involves specialist skills and surance. The degree to which genetic information technical guidance on quality assurance differs from other medical information in standards for genetic tests that are suitable that national context is a question for na for use in developing countries. Evidence demonstrates that a significant proportion of couples will chose to termi Sex selection nate affected pregnancies. The use of medical genetic services for sex resort to unsafe abortion, thereby expos determination and selective abortion of ing themselves to the associated medical, fetuses based on their sex for non-medical financial, social and legal risks. National reasons is a serious problem in some de governments should take action to address veloping countries. Legislative prohibi unsafe abortion, which is a serious threat tions on this practice have so far proved to women and womens health. National governments must cations arising from unsafe abortion can directly address gender discrimination, also result in a significant burden to the “son preference and the social incentives public health system. National govern abortion for fetal abnormalities is re ments of countries where sex selection is a stricted or illegal, further debate is required problem should initiate campaigns to pro at the academic and policy level regard mote equal treatment of girls and boys with ing the ethical acceptability of introduc respect to nutrition, health care, education, ing prenatal genetic testing in the absence employment, inheritance rights and social, of safe abortion services for medical pur economic and political activity. Privacy and confidentiality regulations are necessary to protect patients rights and safeguard against potential discrimination and stigmatization. These regulations need effective enforcement mechanisms to en sure that actual practices align with law and policy. Abortion: For the purposes of this report, the terms abortion and termination of pregnancy are used to Ashkenazi: A Jewish community originating in refer to the deliberate interruption of pregnancy Eastern Europe. There are a number of disease following the detection of fetal abnormality (unless alleles which are more prevalent in the Ashkenazi otherwise specified. Jewish population as compared to the general population, due to endogamous marriage and Alleles: Alternative variants of a gene at the same founder effect in the small original population (for chromosomal locus. Amniocentesis: A test that can be performed after 14 weeks of pregnancy, where a sample of amniotic Autosome: Any of the 22 pairs of chromosomes fluid containing fetal cells is taken from the womb that are not classified as sex chromosomes. Carriers for most reces infant is usually blind, deaf, unconscious, and sive diseases are asymptomatic. Although some individuals with anencephaly may be born with a rudimentary · Obligate carrier: When a person is found brain stem, the lack of a functioning cerebrum to be a carrier from family history alone permanently rules out the possibility of ever gaining (for example a person can be identified as consciousness. Reflex actions such as respiration an obligate carrier of an X-linked condi (breathing) and responses to sound or touch may tion when they have both an affected sib occur (17. Chorionic villus sampling: A procedure that can Cystic fibrosis is often severe and progressive; the be carried out between 8 to 14 weeks of pregnancy average life expectancy is currently between 20– through the vagina or through the abdomen to 30 years. The bronchial system is especially obtain cells of the chorion (which will become the affected. Males are almost always infertile and placenta) to enable genetic testing of the fetus. Treatment, depending upon the when there is an additional or missing chromosome stage of the disease and the organs involved, or section of chromosome. The genes on the involves clearing mucus from the lungs by chest chromosome are not necessarily abnormal; it is physical therapy. For example, Down syndrome is usually caused Diploid: A full set of genetic material, consisting by the inheritance of three complete chromosomes of paired chromosomes, one chromosome from 21. Dominant inheritance: A single allele inherited from one parent, father or mother, is sufficient for Consanguineous: A genetic relationship defined phenotypic expression. Dominant: An allele is described as dominant if it Consanguinity: (see Consanguineous; see also exerts its phenotypic effect when present in the Appendix B. Early-onset disorders: Disorders that present symptoms between birth and early childhood, Genetic testing: Testing offered to people already generally before reproductive age. Genetic counselling: the process by which Genotype: the total genetic constitution of an individuals or families at risk of a disorder that individual. Haemoglobinopathies: Inherited disorders of Genetic drift: Cumulative changes in gene haemoglobin, including thalassaemia and sickle frequency over successive generations because of cell disease, among others. Haemophilia A is a hereditary blood with symptoms until later in life, generally after disorder characterized by a deficiency of the blood reproductive age has been reached. This risk factor is often referred to as advanced maternal Haploid: A single set of chromosomes (half the age, and is generally considered to be over the age full set of genetic material), present in the egg and of 35 years, when the risk of these disorders begins sperm cells of animals. Mendelian disorder: Disorders that respond to the Hereditary: the passing of characteristics genetic laws of dominant and recessive inheritance genetically from one generation to the next, from discovered by the monk Gregor Mendel in peas in parent to offspring. Heterozygote: A heterozygote has a different Mitochondria: Cellular organelles present in allelic form of a specific gene on each of the pair of eukaryotic organisms that enable aerobic chromosomes (often represented as Hh. These are also commonly referred to as and control of disease in a population through homologues. Homozygote: A homozygote has the same allelic form of a specific gene on each of the pair of Monogenic disorders: (see Mendelian disorder. Perinatal: Relating to or occurring during the Prenatal: Existing or happening during pregnancy period around childbirth, specifically from around but before childbirth. Presymptomatic testing: Detection of late-onset diseases that develop in adults, identifying either a Phenotype: the visible properties of an organism predisposition to disease or making a definitive produced by its genotype in interaction with the diagnosis. Recessive inheritance: Two abnormal alleles (if Polygenic: Involving more than one gene (see fully penetrant) must be inherited from each parent Multifactorial disorder. Screening: the systematic application of a test or enquiry to identify individuals at sufficient risk of Polypeptide: A single chain of covalently attached a specific disorder, to benefit from further amino acids joined by peptide bonds. Polypeptide investigation or direct preventive action, among chains usually fold into a compact, stable form that people who have not sought medical attention for is part (or all) of the final protein. Postnatal: Occurring immediately or soon after · Newborn screening: Screening of all childbirth. Predisposition genetic testing: Analysis of a genotype to ascertain whether there is an increased · Carrier screening: Isolation of potential risk of disease. While the genotype alone may be carriers from a larger population for fur insufficient to cause the disease, impaired expression of alleles and/or environmental factors may be necessary conditions for the disease. When a carrier is detected, fur resulting in progressive destruction of nerve cells ther testing is then offered to their rela in the brain and spinal cord.
Although this indicator presents ambient ground-level ozone people with lung disease are most susceptible to the efects concentrations in parts per million (ppm) from 1978 to of ozone symptoms 6 year molars generic levaquin 500 mg without prescription, even healthy people who are active outdoors can 2006 medications and grapefruit purchase levaquin now. Data are shown for 8-hour averaging times treatment tinnitus best purchase for levaquin, based sufer from ozone-related health efects medications you cant donate blood generic 750mg levaquin visa. Over the entire period of record, Region to be infuenced by unusual meteorological conditions. Also shown in Exhibit 2-13 (panel A) are the 90th and • Because most of the monitoring sites are located in urban 10th percentiles based on the distribution of statistics at areas, the trends might not accurately refect conditions the monitoring sites. Regions with low average concentrations may include In summary, despite reductions in ambient concentra areas with high local concentrations, and vice versa. Air quality criteria for ozone and related term data to be included in this indicator. Latest fndings on national air qual based on the subset of ozone monitoring stations that have ity—2002 status and trends. Ozone injury to forest plants on expert opinion, but designed to be equivalent from site can be diagnosed by examination of plant leaves. Ranges of biosite values translate to no injury, low or injury is usually the frst visible sign of injury to plants moderate foliar injury (visible foliar injury to highly sensi from ozone exposure and indicates impaired physiological tive or moderately sensitive plants, respectively), and high processes in the leaves (Grulke, 2003. Sites observed high and severe foliar injury, which are most likely are selected using a systematic sampling grid, based on a global to be associated with tree or ecosystem-level responses, sampling design (White et al. At are primarily found in the Mid-Atlantic and Southeast each site that has at least 30 individual plants of at least three regions. Ozone injury to forest plants in a,b the forest plant species in each region that are highly sen the U. Other forest plant species, Degree of injury: or even genetic variants of the same species, may not be harmed at ozone levels that cause efects on the selected None Low Moderate High Severe ozone-sensitive species. A preliminary assessment of the Montreal process indica tors of air pollution for the United States. Air quality criteria for ozone and related assessment attributes in Sierran conifers. A tographic and geometric component of a global sampling national ozone biomonitoring program—results from feld design for environmental monitoring. The composition and size of these airborne particles source category, 1990 and 1996-2002 and droplets vary. Some particles are large enough to be a,b seen as dust or dirt, while others are so small they can only A. Larger coarse particles are b from these inventory years and other sources, 2002 not readily transported across urban or broader areas because are fully up to date. Data are they are generally too large to follow air streams and they available for inventory years Miscellaneous 1991-1995, but these data and natural tend to be removed easily on contact with surfaces. In Anthropogenic have not been updated to sources 14% short, as the particle size increases, the amount of time the 26% allow comparison with data particles remain airborne decreases. However, condensable particulate emissions are reactions involving primary gaseous emissions. Examples include sulfates formed from sulfur dioxide emissions from power plants and industrial facilities and nitrates formed from nitrogen Emissions indicator, p. Particles formed through oxides released from power plants, mobile sources, and secondary processes are not included in this indicator. Data for the condensable portion exist only for this indicator presents trends in annual average pri the years 1999 to 2002. Condensables are, however, included in the Because secondary particles are not released directly from inset pie charts shown in Exhibits 2-16 and 2-18. For 2002 only, this indicator includes a 400 R6 comparison of these anthropogenic sources with emissions 300 R7 from miscellaneous and natural sources, such as agriculture 200 R8 and forestry, wildfres and managed burning, and fugitive R9 dust from paved and unpaved roads. Biogenic emissions 100 R10 were estimated using the Biogenic Emissions Inventory 0 System Model, Version 3. Diferent data sources use diferent data available for inventory years 6 4 collection methods, and many of the emissions data are 1991-1995, but these data based on estimates rather than actual measurements. For 10 have not been updated to allow 9 2 most fuel combustion sources and industrial sources, emis comparison with data from sions are estimated using emission factors. Puerto Rico and Virgin Islands, and some of the territories of federally recognized American Indian nations. Primary emis sources decreased 27 percent nationally between 1990 and sions from the group of sources including miscellaneous 2002 (Exhibit 2-16, panel A. Data are and 1996-2002, as datasets 10 1 8 2 available for inventory years Miscellaneous from these inventory years are 5 9 7 3 1991-1995, but these data and natural fully up to date. Data are have not been updated to sources Anthropogenic available for inventory years 6 4 allow comparison with data 33% 36% 1991-1995, but these data have 10 from 1990 and 1996-2002. In order to display data generated using a consistent methodology, order to display data emissions of condensable particulate from 1999 to 2002 are not generated using a consistent methodology, emissions of included in this gure. S contain more sulfates than 15 those in the West, while fne particles in southern Califor 10 nia contain more nitrates than those in other areas of the U. Some particles that deposit ticles from diferent sources with diferent sizes and chemical onto plant leaves can corrode leaf surfaces or interfere with compositions. Fine centrations, using averaging times consistent with the particles are the major cause of reduced visibility in parts of the pollutants corresponding National Ambient Air Quality U. Trend data are based on measurements from the State and Local Air Monitoring Stations network and from 0 99-01 00-02 01-03 02-04 03-05 04-06 other special purpose monitors. This provides additional graphical representation of the distribution of measured concentra What the Data Show tions across the monitoring sites for a given year. National and regional trends in this indicator are this period (Exhibit 2-22, panel B. The particle pollution report: Cur for the trend was 10 percent lower than the 1999-2001 rent understanding of air quality and emissions through level (Exhibit 2-24, panel A. The resulting haze ity, causing some particles to become more efcient at scat not only limits the distance one can see, but also degrades tering light and impairing visibility (U. Visibility impairment occurs throughout the coun high humidity, along with a somewhat lower contribu try, including both urban and rural areas. Regional haze has been identi ues are generally between 50 percent and 60 percent. In fed as an important issue for all of the National Parks and western states, primary emissions from sources like wood Wilderness Areas, such as the Grand Canyon, Great Smoky smoke and nitrates contribute a large percentage of the Mountains, Mount Rainier, Shenandoah, Yellowstone, and total particulate loading, though secondarily formed sul Yosemite National Parks (U. Without the the particles that impair visibility include both primary efects of anthropogenic sources of pollution, the annual and secondary pollutants. Vis to account for their adsorption of water vapor from the ibility trends in this indicator are derived from the subset atmosphere under elevated relative humidity conditions. This indicator tracks References visibility in three categories: worst visibility conditions (the Debell, L. The particle pollution report: Current East was 31 km (19 miles), compared to 137 km (85 miles) understanding of air quality and emissions through 2003. The ozone report: Measuring progress and Wilderness Areas increased since 1992 for worst, mid through 2003. These gases are formed when fuel concentrations exceed the National Ambient Air Quality containing sulfur (mainly coal and oil) is burned (e. The most susceptible populations under these conditions include individuals with cardiovas 15 cular disease or chronic lung disease, children, and older Fuel combustion: 10 b selected power generators adults (U. Data are available for increasing foliar injury, decreasing plant growth and yield, inventory years 1991-1995, but these data have not been updated and decreasing the number and variety of plant species in a to allow comparison with data from 1990 and 1996-2002. Data are chemical production and petroleum refning; (4) “On presented only for 1990 and from 1996 to 2002; prior to road vehicles, which includes cars, trucks, buses, and 1996, only the 1990 data have been updated to be compa motorcycles; (5) “Nonroad vehicles and engines, which rable to the more recent inventories. This downward trend resulted generators category in addition to the four categories primarily from emissions reductions at electric utili presented in the other emissions indicators. Although these esti 7 R2 mates are generated using well-established approaches, 6 R3 the estimates have uncertainties inherent in the emission R4 5 factors and emissions models used to represent sources R5 for which emissions have not been directly measured. Data for 2 R8 1991-1995 are not provided due to diferences in emis R9 1 sions estimation methodologies from other inventory R10 0 years, which could lead to improper trend assessments. Data are 9 7 3 • the methodology for estimating emissions is continually available for inventory years 6 4 reviewed and is subject to revision. Trend data prior to 1991-1995, but these data have these revisions must be considered in the context of not been updated to allow 10 comparison with data from 9 2 those changes. National air quality and emissions trends Ofce of Air Quality Planning and Standards, based on report—2003 special studies edition.
As a result medicine woman purchase cheap levaquin line, the difference between the two licensing approaches for university-owned patents has not been demonstrated to be statistically significant symptoms pulmonary embolism generic levaquin 500 mg amex. A separate finding from this study was that it was difficult to determine from examining issued patents whether rights associated with that patent came to be licensed for use in genetic testing medicine 3202 generic 500mg levaquin free shipping. Neither a search algorithm nor scientists with biology expertise could reliably identify medicine 1975 lyrics buy cheap levaquin online, when looking at patents alone, those patents whose rights had been licensed for use in a genetic test. This finding suggests that policy recommendations relating to patents and genetic tests should not focus on the patents themselves, but on their uses or their licensing. In fact, none of the Committees recommendations focus on the patents themselves; they instead concern the use of patents on genes—as defined in this report—for testing and research. Nine Points to Consider in Licensing University Technology In 2007, a group of research universities and the Association of American Medical Colleges issued points to consider in managing intellectual property in the academic environment (see Box C. The Board of the Association of University Technology Managers has endorsed these points. Despite these guidelines, problems in patient access to patent-protected genetics have arisen, as described in this report. Journal of the Association of University Technology Managers 11:51-66; and V Ramakrishnan, J Chen, and K Balakrishnan. Point 2: Exclusive licenses should be structured in a manner that encourages technology development and use. Point 9: Consider including provisions that address unmet needs, such as those of neglected patient populations or geographic areas, giving particular attention to improved therapeutics, diagnostics and agricultural technologies for the developing world. Previous Policy Studies Four previous policy reports addressing the issue of patenting genes or biotechnology inventions merit attention, because they contain sections specific to genetic tests. Federal Trade Commission has issued a report on patent policy that included discussion of biotechnology patents. The Nuffield Council on Bioethics, which is funded by two nonprofit charities and the U. In this way, at the very least, rights over entirely unrelated uses could not be subsequently asserted. The scope of the monopoly awarded would, therefore, be commensurate with the 300 actual contribution by the inventor. There are arguments suggesting that the exclusive licensing of patents relating to medical genetic testing 304 may have adverse consequences, depending on the behavior of licensees. These guidelines were developed in response to a 2002 workshop that investigated the impact of patents and licensing strategies of genetic inventions on access to information, products, and services for researchers, clinicians, and patients. The report makes a number of recommendations aimed at restoring the balance between competition and patent policy and improving patent quality (e. The report also recommends new mechanisms to make it less onerous to challenge invalid patents and new procedures to allow increased access to pending patents for the purpose of business planning and avoiding infringement. To promote innovation: the proper balance of competition and patent law and policy. They shared test samples representing normal and variably sized expanded alleles in order to ascertain that all the laboratories were using the same techniques and getting comparable results. Testing quality control by 311 sending around test samples has been done periodically ever since. Congress should consider whether it is in the interest of the publics health to create an exemption to patent infringement liability to deal with situations where patent 312 owners decline to allow independent verification of their tests. To be precise, the claims concern not the sequence as abstract information, but a 313 molecule which has the defined sequence and function. The effect of these provisions is that researchers do not need license rights to conduct research on a patented gene, and anyone whose 317 discovers a new application of the gene may patent that application. It is not clear, however, whether a gene patented for diagnostic application could be freely used by others for the kind of research described in this report—that is, using a gene in test runs of an improved genetic test. Interpretation of German and French law is beyond the expertise of the Committee; nor were any articles found discussing this narrow question. According to German policy analyst Ingrid Schneider, in enacting these provisions, Germany and France argued that patents which were “too broad in scope would “over-compensate the inventor, would be counterproductive both scientifically and economically because of their potential to stifle the generation of new scientific knowledge, and would reduce the incentives for inventors working downstream in research and 318 development. Genetic Inventions, Intellectual Property Rights and Licensing Practices: Evidence and Policies. Patents on human gene sequences in Germany: on bad lawmaking and ways to deal with it. Comparing the scope of patent protection for gene sequences between the United States and Germany. One provision is an expanded research exemption that makes clear that a patent holders rights do not extend to research on or with the subject 321 matter of the invention. The scope of this research exemption is wider than that of other 322 European countries, which permit only research on a patented invention. The other Belgian provision allows for the government to grant nonexclusive compulsory licenses for public health 323 reasons to patents protecting diagnostic methods, devices, and products. According to Geertrui Van Overwalle and Esther van Zimmeren, this provision “was largely inspired by the restrictive licensing policy of the company Myriad Genetics, which refused to grant reasonable licenses to 324 centres for genetic testing and hospitals. Therefore, one question that arose during Committee discussions was whether legal changes affecting either the patent eligibility of genes and associations or the enforceability of patents on genes and associations would be inconsistent with the U. The Committee determined that there is no cause for concern as there is ample authority in the Agreement to support changes that promote access to, and research on, genetic testing. First, nations may elect to exclude from patentability diagnostic methods for the treatment of humans, 325 plants, and animals other than microorganisms. They can also exclude “inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect 326 ordre public or morality. Reshaping Belgian patent law: the revision of the research exemption and the introduction of a compulsory license for public health. In that case, a dispute resolution panel held that the phrases in Article 30 are cumulative, requiring the respondent nation to justify an exception under each clause separately. Preparing for the genetic revolution—the effect of gene patents on healthcare and research and the need for reform. Changes in the Enforceability of Patents on Genes A change in law making patents on genes unenforceable for diagnostic uses would create a limited exception. Whether the provision would also have to comply with the technological neutrality principle of Article 27 is another issue. Now that the Ministerial Conference has confirmed the special treatment to be accorded to patents involving health care, a neutrality requirement no longer makes sense. But even if Article 27 continues to be applicable, Canada-Pharmaceuticals suggests that a provision could be framed in a way that passes muster. The law challenged in that case appeared to be nonneutral in that it was devised to permit generic drug companies to develop premarket clearance data during the patent period. Nonetheless, the panel reasoned that because any industry that was subject to premarketing approval could avail itself of the measure, 337 Canada met the neutrality requirement of the Agreement. Although the analysis in this report was limited to gene patents, if Congress is concerned about meeting the requirements of Article 27, it could frame the exemption more broadly so that it provides relief to any industry experiencing the same problems that prompted this recommendation (for example, the impossibility of inventing around and the potential for deep 338 patent thickets. Since the proposed exemption is, however, limited to gene patents, a challenge could be brought on technological neutrality grounds. But as explained above, such a challenge is not likely to succeed in the health care arena. More importantly, Congress could avoid a challenge by casting the exemption broadly—for example, by reversing the Federal Circuits decision in Madey v. Since the Committees analysis was limited to gene patents, it could not propose such an exemption itself. While there is empirical research suggesting that research is not hampered by the absence of a research defense, the findings suggest that scientists have persevered by 341 developing a norm of ignoring patents. Because patent holders current revenue stream does not include payments for research uses, an exemption would not conflict or prejudice patent holder interests and thus would not, as Joshua Sarnoff and Henrik Holzapfel have concluded, violate Article 342 30. No “dilettante affair: rethinking the experimental use exception to patent infringement for biomedical research tools. These concerns led the Committee to study the effect of patents on genetic test development and patient access.
This hybridization can be detected by a variety of methods medicine 7 years nigeria purchase 750 mg levaquin otc, thus revealing the presence or absence of specific sequences in the patients genome medicine of the wolf generic levaquin 250 mg. For both microarray and microbead forms of multiplex testing treatment uti order 750 mg levaquin with mastercard, the probe molecules used to detect gene sequences would infringe corresponding patented genes if the probe molecules are identical or equivalent to the claimed isolated genes medicine 3604 pill levaquin 500 mg without a prescription. The probe molecules would also infringe 128 any claims to identical or equivalent oligonucleotide molecules useful as probes. Association patent claims, a phrase used in this report to refer to claims of a simple association between a genotype with a phenotype, may not reference a particular method for detecting the genotype. Thus, association patent claims of this nature—which do not specify a particular method for detecting the genotype—likely would be infringed by multiplex testing. Because multiplex testing methods would infringe typical patent claims on genes and associations, to market a multiplex test without being sued for infringement, a test developer would need to license those patents infringed by the particular molecules used in the multiplex test. The alternative of leaving patented genes out of a multiplex test or not reporting the results 129 pertaining to those genes undermines the very clinical utility of multiplex analysis. The number of licenses a microarray developer would need would depend on how many genes the developer intended to include in the test and how many of those genes are protected by patents. But, assuming the developer wanted to test for multiple conditions involving many genes or multiple genes causing one condition, the developer would likely need many licenses given that many human genes are protected by patents. Although studies conducted so far have not been able to determine exactly how many genes in the genome are patented, these studies provide related information that is useful in getting a general sense of just how much of the genome is covered by patents. For example, one study found that 20 percent of the genes 128 Patent 5,622,829 contains claims to such fragments. This percentage corresponds to 4,382 genes of the 23,688 genes in the National Center for Biotechnology 131 Informations RefSeq and Entrez Gene databases as of 2007. The genes referenced in the claims are distributed over 4,270 patents “owned by 1,156 different assignees (with no adjustments for mergers and acquisition 133 activity, subsidiaries, or spelling variations. The limitation of this study is that even when a patent claim contains a nucleotide sequence, it does not necessarily mean that the isolated nucleic acid molecule that corresponds to that sequence is the actual patented invention. In some cases, the patent may be claiming the isolated molecule as the invention, but in other cases, the patent could be claiming 135 something else, such as a process for using the molecule. Although the Jensen and Murray study cannot be extrapolated to conclude that precisely 20 percent of human genes are either patented as isolated molecules or protected through association patent claims, the study does suggest that a substantial number of genes are protected by patents. Furthermore, ownership of these patents is spread over a large number of assignees. The existence of so many patents protecting genes, spread among various assignees, creates a “patent thicket— “a dense web of overlapping intellectual property rights that a company must 136 hack its way through in order to actually commercialize new technology. This effort would involve a costly search for relevant patents and an analysis of their claims to determine whether the proposed multiplex test would infringe each particular claim. Once the patents relevant to the test were identified, the developer would have to determine whether licenses were available for each patent. The case studies revealed that such licensing information often is difficult to obtain. Finally, the developer would have to separately negotiate licenses with each individual patent 137 holder. Assuming the developer could obtain all of the needed licenses, their cumulative cost might make the product unprofitable. As a practical matter, the developers anticipation of such “royalty stacking and the transaction costs described above may discourage him or her from 130 K Jensen and F Murray. This phrase stands in for the particular nucleotide sequence that is disclosed later in the patent. Navigating the patent thicket: cross licenses, patent pools, and standard setting. Instead of trying to obtain multiple licenses, an innovator could ignore the blocking patents, develop the product, and then respond to infringement suits if they ensue. As Ian Ayres and Gideon Parchomovsky have observed, “By sinking money into the commercialization of an infringing product, the cumulative innovator only makes herself an easier prey for patent holders. After an innovation has been commercialized and put to large scale production, patentees can seek far greater royalties by 138 threatening to shut down production. Choosing to proceed with a product involves the risk of being sued, and the expense of defending against suits that arise diverts funds that could otherwise be used for innovation. When there are many patents that must be licensed for a technology to be commercialized, there is also the risk of a licensing holdout delaying or blocking commercialization. That is, a patent holder on one small component of the technology may threaten to enjoin the use of his or her patent unless granted a royalty that far exceeds the value of his or her component to the overall 140 product. The developer must either grant the high licensing fee or challenge the motion to enjoin. Court of Appeals for the Federal Circuit had been applying a rule “that courts will issue 141 permanent injunctions against patent infringement absent exceptional circumstances. Under that test, A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between 138 Ibid. A threat to enjoin involves a threat to petition the court for an injunction; an injunction is a declaration by the court requiring a party to do or not do some particular act. In this case, the patent holder would threaten to seek an injunction declaring that the developer could not use the patented component. In a concurring opinion in eBay, Justice Kennedy recognized the phenomenon of holdouts seeking to extract exorbitant licensing fees and suggested that injunctive relief may not be appropriate in such cases: “When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the 144 infringement and an injunction may not serve the public interest. This uncertainty has a chilling effect; that is, under eBay a multiplex developer does not learn until after lengthy and expensive litigation is concluded whether an injunction will issue. The risk that the test developer will be enjoined is likely to discourage investment in such tests. Holdouts create problems not only when they threaten an injunction for the purpose of negotiating a higher licensing fee, but also when they refuse to license at all. Faced with such a situation, a multiplex test developer likely would have little legal recourse. Such a developer might be inclined to sue the holdout on the theory that his refusal to license was an antitrust violation. For that reason as well, the Federal Government is unlikely to prevail in court if it seeks criminal or civil sanctions for anticompetitive behavior against a holdout that refuses to license. Therefore, any threat by the Government to bring criminal or civil sanctions against a holdout that refused to license would probably not be credible or effective in motivating the holdout to license. Thus, the thicket of patents on genes and associations presents multiple challenges that may prevent the development of multiplex tests. For example, Dianne Nicol has highlighted several of the challenges discussed here: Companies involved in the development of microarray technology, which allows for multiple tests to be undertaken, are likely to face the greatest level of complexity. If such companies wish to ensure freedom to operate, they have to undertake onerous search obligations to ascertain which patents contain relevant claims and then enter into multiple licensing negotiations. It is not surprising that 146 leaders in the field such as Affymetrix rail against gene and related patents. Another company involved in developing platforms for multiplex testing, Illumina, also raised concerns in a public comment about patents affecting the development of multiplex tests. In its public comment on the draft of this report, the company expressed support for gene patenting, but pointed out that “[d]ealing with such vast amounts of genetic information has the potential to raise a whole host of unique intellectual property challenges. When too many owners have such a privilege of use, the resource is prone to overuse—a tragedy of the commons. Canonical examples include depleted fisheries, overgrazed fields, and polluted air. In an anticommons, by my definition, multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When there are too many owners holding rights of exclusion, the 149 resource is prone to underuse—a tragedy of the anticommons. Earlier Patent Thickets and Approaches to Addressing Them the thicket of patents on genes and associations is not the first thicket to arise during the history of the U. One of the earliest documented patent thickets arose in the 1850s when various patents on components of the sewing machine temporarily prevented its 151 development. Eventually, the various patent holders formed a patent pool to consolidate their 152 rights so that they could proceed with development of the sewing machine. Cumulative technologies such as the sewing machine—that is, inventions made up of several components or elements—often result in patent thickets because different parties may have patented the various components. Other examples of cumulative technologies where patent 153 thickets developed include radio and airplanes in the early 20th century. Nelson explain that “the presence of a number of broad patents, which were held by different parties and were difficult to invent around, interfered with the 154 development of the technology.
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