Health Care and Access to Patented Technologies

Kathryn Garforth,

Legal policy consultant (health & biodiversity law)

May 2006

This article uses access to Myriad Genetics' patented breast cancer genes and genetic tests as a case study for examining international law as well as Canadian legislation and case law relevant to access to health care. The case study is applied to two scenarios: access to existing treatments and access to future treatments. In the former, the analysis focuses in particular on Canadian jurisprudence on the issue of medical necessity as well as the role of financial considerations in section 1 Charter analyses after findings of discrimination under section 15 in health law cases. The considerations used by the courts in these cases are then applied to the situation of litigation for funded access to a patented genetic test. In the latter, the case study highlights how gene patents may encourage or hinder further research.

The article begins with a brief overview of the main provisions of patent law. Next, it 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. This section includes discussion of the history of Myriad's patents in both Canada and Europe. The role of how the cost for the patented 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 of Rights and Freedoms analysis. While not a case about medical necessity, the section includes consideration of the impact the recent Supreme Court of Canada decision in Chaoulli v. Quebec may have on courts' willingness and ability to use the Charter to engage in a redistribution of economic resources within Canadian society. The article ends with some concluding remarks.

'Health Care and Access to Patented Technologies' has been published in the Health Law Journal of the Health Law Institute of the University of Alberta. Under the terms of the copyright agreement signed with the Journal, the Journal has the exclusive right to publish this article until June 1st, 2007. During this period of exclusivity, the Journal expressly consents to the publication of the article on the author's website:

http://kathryn.garforthmitchell.net/downloads/AccesstoPatentedTechs.pdf

For the time being, all rights are reserved by the author.