Funk Brothers: An Exercise in Obviousness

Abstract

This article departs from the dogma that Funk Brothers delineates the limits of patentable subject matter and gives several rationales for why Funk Brothers is, in actuality, a case that outlines an obviousness standard. As an initial matter, one only needs to look to the historical background in which Funk Brothers sits to understand this maxim. Funk Brothers was decided before the codification of the 1952 Patent Act and, in fact, simply defines the current obviousness standard later codified in 35 U.S.C. § 103(a). Accordingly, Funk Brothers should not be cited as a case against the patentability of genes under non-patentable subject matter (35 U.S.C. §101). Interestingly, the analysis that the Funk Brothers Court uses is, at its core, an obviousness analysis. This article suggests that the breadth of subject matter patentability should be kept broad. Furthermore, this article suggests that the novelty and obviousness standards are better tools that can limit and define the boundaries of patentability for gene patents.

Keywords: Patents, patentable subject matter, obviousness, 103, 101 gene patents

JEL Classification: Patents, patentable subject matter, obviousness, 103, 101 gene patents