Patent Doc reports this morning that Sen. Leahy has written to Francis Collins to ask that NIH assert 'march-in' rights on the BRCA test to make it more widely accessible and affordable. This would potentially be a remedy the government could use to 'overcome' Myriads' patent position with the BRCA test. This would be allowed due to provisions in Bayh-Dole that allow the government to do this in certain circumstances where tax payer money was used to develop a patented technology.
We've come to this since Myriad more or less prevailed in the Supreme Court with regard to its patents on cDNA which enable it to provide BRCA 1 & 2 genetic testing for breast and ovarian cancers. Myriad has now begun to actively protect its IP position with a series of suits (described here late last week) against potential competitors who wish to offer cheaper versions of the test.
March-in rights are supposed to be a last resort tool so we'll have to watch this story more closely to see if it spurs Myriad to offer any more licenses to the test.
Posted by Bruce Lehr July 18th 2013.