Anticipating Patentable Subject Matter

Stanford Law Review Online, Vol 69, pp. 109, 2013

UC Irvine School of Law Research Paper, No. 2013-97

6 Pages Posted: 25 Feb 2013 Last revised: 5 Oct 2015

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: February 21, 2013

Abstract

By the summer of 2013, the United States Supreme Court should issue an opinion in Myriad v. AMP, a case dealing with the patentability of human genes, including "cDNA" molecules that are created in the laboratory. Opponents of gene patenting have argued that such molecules should be deemed unpatentable "products of nature" because, statistically, such molecules might sometimes be fortuitously created in human cells. But this argument improperly imports into patent law's section 101 subject matter analysis the doctrine of inherency from section 102's provisions on novelty. And, if inherency is to be imported into section 101, the proper standard for patentability would be the "public benefit" criteria that has been developed in section 102 consideration of inherency. Under the "public benefit" standard, Myriad's cDNAs would constitute patentable subject matter.

Keywords: patents, biotechnology, DNA, product of nature, M/yriad, subject matter, inherency, genes

JEL Classification: O31, O33, O34, L65

Suggested Citation

Burk, Dan L., Anticipating Patentable Subject Matter (February 21, 2013). Stanford Law Review Online, Vol 69, pp. 109, 2013; UC Irvine School of Law Research Paper, No. 2013-97. Available at SSRN: https://ssrn.com/abstract=2223261

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
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949-824-9325 (Phone)

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