Health Care and Access to Patented Technologies
![handle is hein.journals/hthlj13 and id is 79 raw text is: Health Care and Access to Patented Technologies
Kathryn Garforth*
I Introduction
The past 25 years have witnessed a growing interaction between healthcare
and intellectual property rights. This growth has been due to both new genetic
technologies and the expanding scope of intellectual property protection. The
interaction does not come without costs, however, and intellectual property rights
are increasingly pointed to as a culprit in access to health care. Disputes over Myriad
Genetics' patents over breast cancer genes have brought attention to this issue and
it is instructive to examine how Canadian courts might react to a demand for funding
for a patented genetic test in light of existing law.
Following this introduction, the article begins with a brief overview of the
main provisions of patent law. Next, section III explores health care and access to
patented technologies via a case study of Myriad Genetics and its patents on genes
and genetic tests related to breast cancer. The role of how the cost for the test might
affect access to existing and future treatments is explored in more detail through
an analysis of relevant international and Canadian law. In particular, the section
focuses on how Canadian courts, in light of the current case law, might consider
the high cost of a patented genetic test when assessing medical necessity and
justifications for discrimination under a section 1 Charter analysis. Finally, section
V offers some concluding remarks.
II Introduction to Patent Law
A brief explanation of patent law helps to lay the framework for the discus-
sion that follows. Patents are used to grant inventors exclusive rights to their
inventions. Under the Canadian PatentAct', 'invention' means any new and useful
art, process, machine, manufacture or composition of matter, or any new and useful
improvement thereof.2 Section 28.3 of the Act also requires that an invention be
non-obvious in order to receive a patent. Finally, mere discoveries and products of
nature are not inventions as they lack the requisite novelty.3
. Kathryn Garforth, M.E.S.-LL.B. (York University, Osgoode Hall) is a law and policy researcher and
consultant working in the areas of health, intellectual property rights, biodiversity and biotechnology. She
can be reached at kathryn.garforth@mail.mcgill.ca. The discussions of Canadian statutory and case law
build upon and update an earlier article, Kathryn Garforth, Canadian 'Medical Necessity' and the Right
to Health (2003) 8 Canadian HIV/AIDS Policy & Law Review 63.
1Patent Act, R.S.C. 1985, c. P-4.
21bid. at s. 2.
3PioneerHi-BredLtd. v. Canada (Commissioner ofPatents), [1989] 1 S.C.R. 1623, at para.18 (QL).](ViewImageLocal?handle=hein.journals/hthlj13&div=5&collection=&method=preview&ext=.png&size=3)
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