Reinventing the Double Helix: A Novel and Nonobvious Reconceptualization of the Biotechnology Patent

Stanford Law Review, Vol. 55, p. 303, 2002

160 Pages Posted: 1 Jun 2009 Last revised: 27 Nov 2014

See all articles by Aaron Xavier Fellmeth

Aaron Xavier Fellmeth

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Linda Demaine

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2002

Abstract

The ownership of preexisting genes and other biochemicals raises important questions about the scope and purpose of patent law - what it is designed to accomplish and how biotechnology fits within that design. More fundamentally, whether patent law is properly applied to products not independently created by a patent applicant implicates questions about the limits of intellectual property ownership, policy decisions about whether natural substances and processes should reside in the public or private sphere, choices about the value placed upon publicly available knowledge, and the microeconomic effects of limiting patents to some kinds of biotechnological innovations while excluding patents on others. Are patents on naturally occurring phenomena, such as discovered DNA sequences, proteins, plasmids, and other biological chemicals, truly as uncontroversial and "simply necessary" as a matter of public policy as many legal commentators, the biotechnology industry, and the Patent and Trademark Office Director himself have argued? Are patents on naturally occurring substances of any kind authorized by the relevant legislation and case law? The answers are far from obvious, and their importance merits a more careful and detailed examination of the legal and policy underpinnings of the patenting of genes and other biotechnological innovations than has so far been undertaken. This Article provides the first comprehensive examination of this issue. The authors argue that the strong recent trend in the case law and literature toward viewing gene patents as uniformly desirable and legally proper rests upon a prevalent misinterpretation of a triad of key patent law concepts.

Keywords: gene patents, intellectual property, Patent Act

Suggested Citation

Fellmeth, Aaron Xavier and Demaine, Linda, Reinventing the Double Helix: A Novel and Nonobvious Reconceptualization of the Biotechnology Patent (2002). Stanford Law Review, Vol. 55, p. 303, 2002. Available at SSRN: https://ssrn.com/abstract=1405456

Aaron Xavier Fellmeth

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Linda Demaine (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
125
Abstract Views
1,410
rank
227,701
PlumX Metrics