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New Book Explores Tension Between Patents and Universal Access to Science

Published October 2015, Patents, Human Rights and Access to Science by Aurora Plomer examines the challenges posed by the modern patent system to the human right of everyone to enjoy the benefits of science. Plomer, professor of law and bioethics at the University of Sheffield in the UK, highlights the tension between patents on scientific discoveries such as isolated genes and pharmaceutical drugs and universal access to science.

Disputes over ownership in science arise in clashes between public organizations, scientists, and civil society on one hand, and pharmaceutical companies and academic institutions on the other. Plomer uses the historic overturning by the US Supreme Court of the decades-old policy by the US Patents and Trademark Office on gene patents as an example. Myriad Genetics had patented the isolated genes BRC1 and BRC2, associated with breast cancer. Plomer writes, “Myriad had actively exploited their right to exclude others from using the patents... preventing others from developing alternative and more affordable tests than its own $3000 test.” [1] After a protracted legal battle between the American Civil Liberties Union and the U.S. Patent Office against Myriad, the Supreme Court ruled that isolated genes were a “product of nature” and therefore not patent eligible. Though the verdict was based on a technicality related to the scope of the term “product of nature,” Plomer argues the verdict “calls into question patent policies which put the rights of organizations motivated by the pursuit of profit above the public interest and rights to equal and free access to open science.” [2]

Plomer proceeds to explore the juxtaposition of private and public rights of access to science in international law, specifically Article 27 of the Universal Declaration of Human Rights (UDHR) and Article 15 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Plomer traces the genealogy of both articles and focuses on Article 15 ICESCR, the first part of which reads:

"Article 15: 1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author."

Plomer points to the “absence of a unified theory or ideology behind the right to access the benefits of science” and “makes it all the more imperative to articulate the normative framework upon which interpretation of the texts is to be founded.” [3] She develops such a normative framework, arguing that the ideal of human rights is founded in the equal dignity of all persons and the value of human self-realization. She states this suggested ideal “presupposes a rich and thick conception of individual freedom, of individuals being able to achieve who they choose to be and could be… [requiring] the existence of enabling democratic institutions.” [4] In this way, institutions protect individual self-realization and the common good simultaneously, eliminating the contradiction between private and public access to the benefits of science.

Plomer suggests using this normative framework of human rights ideals to analyze the actions and guidance of international organizations such as the United Nations, the Economic and Social Council (ECOSOC) and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) on Article 15. She outlines potential actions these organizations, and others, such as human rights organizations, could take in order to promote access to science and combat aggressively restrictive patents. However, Plomer concludes that from the perspective of the framework she develops, the current patent system is failing to realize the ideal of universal access to science, and fundamental reconstruction of the patent system is needed to realize this right meaningfully. [5]

[1] Plomer, Aurora. Patents, Human Rights and Access to Science. Cheltenham: Edward Elgar Pub., 2015, 3.
[2] Ibid., 9.
[3] Ibid., 164.
[4] Ibid.
[5] Ibid., 178.

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