Diagnostic Kits/Nonenforcement, Noneproblem Rethinking the Anticommons in Biomedical Research

Eisenberg, R. 2008. Noncompliance, Nonenforcement, Nonproblem? Rethinking the Anticommons in Biomedical Research. Houston Law Review Available at: # www.houstonlawreview.org/archive/downloads/45-4_pdf/03_​Eisenberg.pdf [Accessed November 20, 2009].

F. DNA Diagnostics Page 13

• "It is not clear whether the difficulties documented in these studies arise from the challenge of negotiating multiple licenses in the face of a proliferation of patents, as distinguished from the inability to reach agreement with a single obstreperous patent holder." (citing Nicol & Nielsen)
  • Myriad Genetics is cited as a licensing practice problem
  • microarrays face a potential "anticommons problem if the burden of negotiating many necessary licenses consumes too much of the expected value of the product
• This article views the barriers to innovation in the diagnostic genetic kits field through the lens of licensing. This could be seen as the licensing thicket. Of course, the licenses rely on patent protection, so there may be an important upstream analysis missed by this approach. The advantage of this approach is that it might suggest a solution in the form of cooperative licensing without disrupting the current patenting model.