Genes as essential facilities?
Read more here.With the IMS Health case before the ECJ, the essential facilities doctrine has taken centre stage in Europe. A recent report by the JFTC seems to suggest that Japan is serious about invoking this doctrine. However the parameters of this doctrine are far from settled. Antitrust authorities do not enough guidance on issues such as determining appropriate license fees for access, optimal number of licensees etc. In keeping with my focus on blocking and disease gene patents, I have dealt mainly with one aspect of this doctrine-namely the question of “essentiality”. Essentiality would in most cases help in a determination of ‘blocking’ i.e. if the facility is a non-essential one, then there can possibly be no blocking. However the converse need not always be true-i.e. if the facility is an essential one, but is widely licensed, then it is quite possible that there would be no blocking.
Labels: competition, genetics, patent
