Cash Flow: Susan G. Komen, financial implications, patent law.

February 4, 2012 2:09 PM

Let's assume Susan G. Komen has found an all-encompassing cure for [breast] cancer. Who owns the rights to the patent?

My concern is that, forgive the crude joke, women will end up losing an arm and a leg to save their boobs.

If their research leads to a cure, will it only be available as an unbranded treatment with corresponding generic prices?

Forgive me if this is a clear-cut answer; I actually keep up on Big Pharma and never even considered the implications of donation-sponsored R&D.

Bonus points: links to further reading regarding the Komen association and its financials.

posted by aca.int to Law & Government (8 answers total)

Komen funds universities and research hospitals who do the actual work. My understanding is that they (whoever discovered the cure) would have the right to patent it.

It isn't legal to get something in return for a charitable donation (there are some ways around this, but as a rule), so the Komen Foundation doesn't have rights to what their funding might produce or the revenue earned from it.

If you want to see financial information on the Komen Foundation, the best way is to just look at their 990s which must be made publicly available. They list all of the Foundation's gifts, assets, highest paid employees, etc. You can look them up on Guidestar.org.
posted by Lutoslawski at 2:15 PM on February 4, 2012

I am not sure how far the medical/research/pharm companies have progressed in terms of sharing information, but you might find it interesting to read about the history of the search for a cure for HIV (especially in the 80's).
posted by AlliKat75 at 2:20 PM on February 4, 2012 [1 favorite]

In general (and assuming US law applies), a patent is granted to the person who made the invention in question. (As in, a flesh-and-blood human being, not a "legal person" like a corporation.)

However, if the inventor is employed to do research by a company (like, say, Bristol Myers or Astra Zeneca), his or her employment contract will almost always require the inventor to assign any patents for inventions made on the job to the employer. (This can happen with universities, too, which sometimes require their faculty to assign any patents to the institution.) You'll sometimes see this on patent documents, which list the inventor (a person, or group of people) and the assignee (the company that winds up owning the patent).

So the short answer is, "it depends". Specifically, it depends on who makes the invention, who employs the inventor, and what the terms of any applicable contracts say about ownership of patents resulting from discoveries.
posted by Zonker at 2:32 PM on February 4, 2012

Salk received grants from the March of Dimes. When he found the vaccine, the March of Dimes did not own it. Although people assumed he would own the patent, he refused and declared that the people owned the patent and saying, "Could you patent the sun?" But, the assumption was that he would own it, not the March of Dimes.

I'm sure you didn't mean harm, but I wish you didn't write " losing an arm and a leg to save their boobs" because of course, women are fighting for their life, not their boobs.
posted by Houstonian at 4:16 PM on February 4, 2012 [6 favorites]

I think that Zonker has it right regarding patent rights. I just wanted to let you know about Charity Navigator, which gives a nice series of ratings and summary of individual charities based on their financial accountability and transparency, among other things.
posted by monkeys with typewriters at 4:17 PM on February 4, 2012

Charities can indeed own patents, so it's conceivable that Komen could control "the cure." However, it's really, really unlikely that there would be a single breakthrough patent for a drug, gene, or vaccine representing a cure. There's no such single disease as "breast cancer," in the sense that there is for, say, polio. If there were, any competent modern medical researcher would have found a cure in an instant.

HIV is an instructive example, as mentioned above. It is a very challenging, genetically diverse disease, but at least it's a single disease, and there is nothing that's "the cure." Twenty years of research generated a parade of drugs, none controlled by a single company. Breast cancer is even more diverse and difficult to attack, since it's the body's own cells, and there are a million ways for them to become cancerous. A few genes, like BRCA1 have been identified for certain types of breast cancer, but even those genes have hundreds of different mutations. The identified genes do not, to my knowledge, explain more than a small percentage of the breast cancer cases, in any case.

Furthermore, there is precedent that if there were a patent that was being exploited in a bad way, that the U.S. Government would step in with a mandatory licensing scheme. See the mandatory membership of U.S. aircraft companies in the wake of the Wright Brothers patents that were crippling the industry. Nothing would stop overseas drug manufacturers in any case, except if the cure were an actual secret. While the ability of our government to stand up to corporations has atrophied significantly since then, my guess is it would be politically untenable to see women around the world cured of their cancer, while treatment in the U.S. was hobbled by a patent.

That's a lot of words to say, "don't worry about it," but that's my overall judgement. Komen really couldn't monopolize "the cure," no matter what role they had in creating it.
posted by wnissen at 4:44 PM on February 4, 2012

Also, there is a big difference between patenting a treatment and bringing a treatment to market. Typically, the kind of organizations that Komen funds aren't capable of getting past (or sometimes even into) phase 1 clinical studies, so they would end up partnered with one or more larger organizations.

I worked for one of those larger organizations and spent a year or so involved in a project where our one goal was to get a purification scheme where the drug was clean, but we where we would get enough material so that it wouldn't be $10,000 a dose, because if we couldn't, it was pretty much given that it wasn't going to make it as a product.

So yeah, even if someone wanted to be super mercenary about pricing, some other partner in the process who was wanting to actually make some money on all that time and effort they put into the project would whack them across the nose with a rolled up newspaper.
posted by Kid Charlemagne at 6:06 PM on February 4, 2012 [1 favorite]

I don't know about the Komen Foundation specifically, but in response to those who have said "charities can/cannot own patents" -- if a foundation is large and powerful enough, it may be able to get grant recipients to agree to put restrictions on its intellectual property. For instance, if you get a grant from the Gates Foundation, they make you sign a contract agreeing that you'll make the result of your research available at low or no cost in developing countries. I'm not sure whether the Komen Foundation does something similar.
posted by chickenmagazine at 6:51 PM on February 4, 2012