Reverse Tying: Introducing the Doctrine of Patent Misuse and Antitrust in the Human Gene Context
Abstract
It is an established principle in the practice of the U.S. Patent and Trademark Office that patent grants do not confer ownership of genes, genetic information, or sequences. By solely focusing on the patent ineligibility of genetic information, the longstanding human gene patent debate may have missed the point, since genetic information is not covered under any patent. In fact, a study found that much of the international gene patent policy debate was catalyzed by one single patentee’s aggressive enforcement of his patents. Therefore, the issue should be analyzed under the rationale of patent misuse or antitrust. There are situations where the patentee refuses to license his patented invention accompanied by an implied contract not to use a separate unpatented item, such as the genetic information corresponding to a DNA molecule. It is termed “reverse tying” and this Article suggests that it should be an affirmative defense in infringement cases involving human gene patents.