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ARTICLE · 11 APRIL 2013

Are Human Genes Patentable?

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The Supreme Court has long held that laws of nature, natural phenomenon, and abstract ideas are not patent eligible under 35 U.S.C. § 101.

United StatesIntellectual Property
Christopher Mitchell
Christopher Mitchell
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The Supreme Court has long held that laws of nature, natural phenomenon, and abstract ideas are not patent eligible under 35 U.S.C. § 101. See, e.g., Diamond v. Diehr, 450 U.S. 175 (1981); Diamond v. Chakrabarty, 447 U.S. 303 (1980). Since 2010, the Supreme Court has twice more considered this issue, both times reversing the Federal Circuit. Mayo Collaborative Serv. v. Prometheus, Inc. 132 S. Ct. 1289 (2012) (a method of optimizing the efficacy of a drug is an unpatentable law of nature); Bilski v. Kappos 130 S. Ct. 3218 (2010) (a method of hedging risk in trading commodities constitutes an unpatentable abstract idea). On April 15th, the Supreme Court will hear yet another case concerning patent eligible subject matter, this time on an issue of great importance to the biotechnology industry; namely, the patentability of human genes. Ass'n for Molecular Pathology v. Myriad Genetics, Inc., U.S. No 12-398, (Nov. 30, 2012).

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