In Re Kubin’s Reinvigorated Nonobviousness Standard for DNA Patents

36 Pages Posted: 15 Mar 2010 Last revised: 30 Mar 2013

Date Written: March 11, 2010

Abstract

In In re Kubin, the Federal Circuit declined to apply its outdated, anomalous nonobviousness standard for DNA patents, and instead adopted a modern standard that mirrors most other nations’ patent law and appropriately considers the progress of science. While both legal practitioners and legal scholars have argued for reinvigorating the nonobviousness standard as it is applied to DNA sequences, the Kubin court has now incorporated this doctrinal change in U.S. patent law. Consequently, this decision may have substantial and far-reaching effects for the biotechnology industry. Practical and policy arguments support its adoption, and both the standard’s roots in U.S. patent law and the standard’s analogous provisions in the European patent law will provide support and guidance to those who must now implement and apply the standard.

Keywords: nonobviousness, biotechnology, DNA, inventive step, patent

JEL Classification: K11, O34

Suggested Citation

Isenbarger, Thomas Anthony, In Re Kubin’s Reinvigorated Nonobviousness Standard for DNA Patents (March 11, 2010). Wisconsin Law Review, Vol. 6, p.1435, 2009. Available at SSRN: https://ssrn.com/abstract=1569145

Thomas Anthony Isenbarger (Contact Author)

Casimir Jones, S.C. ( email )

No Address Available

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