Restrictions On Human Gene Patent Granting From The Perspective Of Balance Of Interests

As genetic technology continues to evolve,the continued indiscriminate protection of human genes isolated from the human body has led to increasingly prominent obstacles to subsequent scientific research and public health.The debate over the patentability of human genes was first appeared in developed countries with advanced genetic technology,and further intensified with the MYRIAD case.Although the U.S.Supreme Court put an end to the litigation by using the markedly difference test to hold that purely isolated DNA is a natural substance and not eligible for patenting,the conflict of interest that emerged throughout the case,and the far-reaching outcome of the U.S.Supreme Court’s decision,warrants a re-examination of the granting of human gene patents in terms of the balance of interests.A theoretical examination of the patent system from the perspective of philosophy of law and economics shows that the patent system has a dual value objective of preserving private rights and public interests.The monopoly of patent rights and the public’s demand for intellectual products are inherent contradictions of the patent system,so the patent system inherently needs to balance the interests of the two.In the field of human gene patents,the characteristics of human genes’ information,irreplaceability and close relationship with people make the contradiction between human gene patent rights and public interests particularly prominent,which poses a challenge to the dual value goal of the patent system.Through the study of the amicus brief in the MYRIAD case,a practical investigation of the human gene patent system is carried out.The contradiction between human gene patent rights and public health rights,as well as the contradiction between the monopoly of patent rights and the freedom of research of subsequent inventors,is not only the product of theoretical deduction,but also a real problem based on the earnest needs of the people.When granting a human gene patent,first of all,it is necessary to take into account the private attributes of patents and the public attributes of genes;secondly,while maintaining the incentive effect of patents on innovation,it is necessary to avoid the accumulation of patents that hinder innovation;finally,attention should be paid not only to promoting the transformation of achievements with patents to improve the supply of advanced medical products,but also to prevent oligarchs from hindering public access to medical services.Comparing the three standards of patent subject matter eligibility in the United States and analyzing the MYRIAD decision,it is revealed that,firstly,there is a particular need for a balance of interests in the field of human gene patents;secondly,there is a need to improve the standard of distinction between inventions and discoveries in the field of human gene patents.At present,human gene technology has entered a new stage of research and development,and the number of human gene patent applications in China has increased significantly.The lax legal provisions on patent eligibility have sown hidden dangers for the human gene patent system in China.Therefore,China should also focus on the principle of balance of interests and raise the standard of distinction between inventions and discoveries to avoid intense conflicts between the granting of human gene patents and public interests.