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« Bowman v. Monsanto Co. (2013) | Main | CLS Bank Int'l v. Alice Corp. (Fed. Cir. 2013) (en banc) -- Judge Lourie's Concurrence »

May 14, 2013


That's a good contribution to this debate. By this estimate, claims in about 8,700 patents would be affected, more than 60% of which are in areas of agriculture, veterinary uses, bioenergy, industrial enzymes, food and beverage production, and industrial microbiology. So the predominant impact would be in those areas of biotechnology that have the least to do with human genetic testing?

Setting the numbers aside or even assuming that the numbers show that the "importance" of patents on isolated DNA is going to decline to a non-issue, my biggest concern with the likely negative SCOTUS opinion in Myriad is the slippery slope after.

If isolated genomic DNA is not eligible, what next? Other isolated biomolecules such as proteins, antibodies, cytokines, hormones, carbohydrates ... and then what? Isolated ligands and small molecules?

Hopefully, the Justices will be smart and care enough to write an opinion that will clearly set forth the boundaries in order to prevent the biotech (and pharmaceutical) industry from hemorrhaging out of control.


Let's also not forget that the genetic material like the BRCA gene at issue in Myriad represents only 2% of the genome. As the ENCODE approach shows, there still the other 98% of that genome that isn't part of the "flat world view" applicable to the BRCA gene. So even if SCOTUS decides against the patent-eligibility of the isolated BRCA DNA genetic material (based on the "flat world view"), that holding would not necessarily apply to that "other 98%" of the genome.

Frankly, I can't see how the Court can limit its holding only to Human DNA. There is no legal hook in the statute, or the enumerated exceptions, that allows a holding to be so limited. How can Human DNA be a natural phenomenon/law of nature, but bacterial DNA not be one?

I have to admit this would be kind of funny.

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