Genes as Intellectual Property

Abstract

There was a time in the United States when horse thieves were hanged. The right to claim an individual animal as one’s property is undisputed. The right to claim ownership of a species is still worthy of debate. This paper examines the rationale that has been employed historically by the United States Patent and Trademark Office in the examination of patent applications for living things from genes to human clones, and highlights internal inconsistencies in patent decisions that have not been previously addressed. Introducing a direct analogy between the patentability of genetic information and previously unconnected patent issues in the computer software industry, the true nature of genes is described in unique terms that arguably position them more suitably under copyright law than patent law, and ultimately excludes them from protection under either branch of intellectual property law.

Keywords: genes, patents, gene patents, genetic information, software patents, patent law