Big Data, Patents, and the Future of Medicine image

Cardozo Law Review, Forthcoming , September 13, 2015
W. Nicholson Price II (Academic Fellow Alumnus)

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Abstract: 

Big data has tremendous potential to improve health care. Unfortunately, intellectual property law isn’t ready to support that leap. In the next wave of data-driven medicine, black-box medicine, researchers use sophisticated algorithms to examine huge troves of health data, finding complex, implicit relationships and making individualized assessments for patients. Black-box medicine offers potentially immense benefits but also requires high investment. Firms must develop new datasets, models, and validations, which are all nonrivalrous information goods with significant spillovers, requiring incentives for welfare-optimizing investment.

Current intellectual property law fails to provide adequate incentives for black-box medicine. The Supreme Court has sharply restricted patentable subject matter in the recent cases Prometheus, Myriad, and Alice, and what might still be patentable is limited by the statutory requirements of written description and enablement. Other incentives for investment, such as trade secrecy or prizes, fail to fill the gaps. These limits push firms away from using big data in medicine to solve big problems, and toward small-scale incremental innovation. Small tweaks to doctrine will help, but are not enough. Instead, the big data needed to support transformative medical innovation should be considered as infrastructure for innovation and the focus of substantial public effort.

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