Trade Secrets vs. Patents – The Myriad Genetics Experience

An interesting article from the New York Times concerning Myriad Genetics, makers of an expensive breast cancer genetic test.

Some background: as a general rule patent protection looks a lot different from trade secrets protection. If you proceed with patents, you publish and explain your invention to the world in return for a monopoly to practice it. With trade secrets, you keep your information close to the vest so that no one sees it (at least without paying for it).

Myriad Genetics recently had its patent on two human genes used in its test upheld. Now though, the company is looking more toward trade secrets protection.

The key quote:

“The company also plans to rely less on patents and more on trade secrets. Because it has done so much more testing than anyone else, Myriad has more information on which of the thousands of possible mutations in the two genes actually raise the risk of getting cancer.”

And:

“Myriad used to share such information with a public database maintained by the National Institutes of Health, and it cooperated with academic scientists trying to analyze the mutations. But a few years ago, the company quietly stopped contributing and cooperating, in favor of building its own database.”

Not surprisingly, some public interest groups aren’t happy with the idea that Myriad is using trade secrets in an effort to extend its monopoly.

In any event, its an interesting example of the interplay between the two different regimes.