Monday, December 3, 2012

Supreme Court to Decide if Isolated Human Genes Are Patentable

The U.S. Supreme Court recently granted review of a decision by the Court of Appeals for the Federal Circuit affirming that isolated human genes are eligible for patent protection. The Court granted review of a single question:
Are human genes patentable?
This is a deceptively simple question. The District Court essentially ruled that all patents on isolated genes are unpatentable. Conversely, the Federal Circuit basically ruled that isolating human genes from their natural environment (e.g., in a human cell) sufficiently differentiates an "isolated" gene from a "naturally occurring" gene to be patentable (naturally occurring substances are not patentable as they are not inventions).

While predictions will surely run the gamut of possibilities, my gut feeling is that there are at least four votes to reverse the Federal Circuit (the minimum number of justices necessary to grant review) and that the Court will rule that merely isolating a gene does not change it substantively enough to render it patentable, but that modified genes will remain patent eligible. Also, methods related to the isolation of genes or the use of isolated genes will also still be protectable.

2 comments:

  1. This is such an exciting case. I have a buddy that is a patent lawyer in Chicago IL and we were just discussing this case last night. I am on pins and needles waiting to see what happens.

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  2. I had no idea you could patent things like genes! A friend of mine is becoming a patent attorney in Minneapolis MN and he wants me to patent my invention and be his first client. Is it a good idea to mix business with friendship?

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