The Tragedy of the Microarray Anticommons

Abstract

The public awareness of gene patenting has grown because of the most recent court ruling on the BRCA patents held by Myriad Genetics ( Association for Molecular Pathology v. United States Patent and Trademark Office , US District Court, Southern District of NY, March 29, 2010). Many scientists and professional societies have advocated a change in the practice of patenting and licensing individual human genes, but most of the discussion has focused on the mutational analysis of single genes. In the past decade, numerous multimarker microarray and proteomic assays with potential clinical use have been developed. Each of these assays contains dozens of markers that are all required for clinical utility; however, the creators of these assays do not typically address the potential problems that may occur when one or more of the biomarkers of interest have already been patented and licensed by another party. The barrier to utilizing a technology that contains multiple pieces of intellectual property assigned to multiple owners is reminiscent of the predicted “tragedy of the anticommons” (1). The concept of the tragedy of the anticommons in biomedical research was described a decade ago as the underutilization of a scarce resource with too many overlapping owners (1). It is an adaptation of the “tragedy of the commons” explanation for the opposite type of problems, which occur when shared public resources are overused because no individual has the ownership authority to prevent use by another. The result of this unrestricted use was hypothesized to be the cause of overpopulation, pollution, deforestation, and depleted fisheries (2). As an example of the tragedy of the commons, imagine 2 sheepherders overgrazing the same public field (a common) until the land was overused and could no longer support any …