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
In In re Kubin, the Federal Circuit declined to apply its outdated, anomalous nonobviousness standard for DNA patents, and instead adopted a modern standard that mirrors most other nations’ patent law and appropriately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: Suggested Citation