Patenting medical diagnosis methods in Europe: Stanford University and time-lapse microscopy

The prevalence, promotion and pricing of three IVF add-ons on fertility clinic websites

RESEARCH QUESTION

How are IVF clinic websites advertising three common IVF add-ons: assisted hatching, time-lapse embryo imaging and preimplantation genetic testing for aneuploidies (PGT-A)?

DESIGN

The Human Fertilisation and Embryology Authority 'Choose a fertility clinic' website service was used to identify IVF clinics and their websites. Assisted hatching, time-lapse embryo imaging and PGT-A were examined to determine which websites advertised them, what price they charged and what claims they made in relation to the add-ons.

RESULTS

Eighty-seven eligible clinics were identified, with 72 unique websites; 37 (43%) clinics were part of one of nine groups of IVF clinics, of sizes ranging from two to eight clinics in the UK. Time-lapse imaging (TLI) was the most frequently advertised of the three add-ons (67% of clinics), followed by PGT-A (47%) and assisted hatching (28%). Very few websites stated that the effectiveness of the add-on was in doubt or unclear (four, two and one websites for TLI, PGT-A and assisted hatching, respectively), and none raised the possibility that an add-on might have negative effects. Claims of efficacy were often based on upstream outcomes (e.g. implantation, pregnancy). Some claims that PGT-A and TLI improved live birth rates were found. There was substantial variation in pricing.

CONCLUSIONS

IVF clinic websites provide valuable information for patients seeking fertility treatment so it is key that the information is accurate and complete. There is a need for transparent information on interventions, including uncertainties and risks, to be made available by IVF clinics to support well-informed treatment decisions. The selected add-ons are widely advertised, and there is wide variation in pricing.

Dignity again

Two recent contributions to this journal discuss a challenge to Stanford's time-lapse embryo monitoring patent, currently before the European Patent Office (EPO). Sterckx, Cockbain and Pennings (2017) would like to keep the morphokinetics of embryo division in the public domain; they argue that time-lapse monitoring (TLM) is a diagnostic method in the sense of European patent law and therefore unpatentable. In response, Pearce (2017) suggests that the jurisprudence of the EPO unambiguously says that TLM is not a diagnostic method. This commentary proposes an alternative legal ground for challenging patents relating to the principle of TLM, a ground that could be invoked before national courts and, ultimately, the Court of Justice of the European Union: TLM is not a diagnostic procedure but a process of selection that breaches the criterion of dignity in European patent law.

Time-lapse microscopy patent upheld in Europe: response to Pearce

In this piece, we comment on the article by Pearce earlier in this journal. As Pearce correctly points out, what is fundamentally at issue in ESHRE et al's opposition to Stanford University's European patent on time-lapse microscopy is whether an exclusion from patentability, here of methods of medical diagnosis, should be interpreted narrowly or not. In the present case, the dominant piece of case law from the European Patent Office (EPO) gives a narrow interpretation of what a method of diagnosis must be in order not to be patentable. In their submissions to the EPO, ESHRE et al. have argued that this narrow interpretation is unfounded and incorrect.