Funk Brothers: An Exercise in Obviousness

21 Pages Posted: 21 Jul 2021 Last revised: 11 Aug 2021

See all articles by S. Sean Tu

S. Sean Tu

West Virginia University College of Law

Date Written: June 30, 2011

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

Suggested Citation

Tu, Shine (Sean), Funk Brothers: An Exercise in Obviousness (June 30, 2011). University of Missouri-Kansas City Law Review, Vol. 80, No. 3, 2011, Available at SSRN: https://ssrn.com/abstract=3877370

Shine (Sean) Tu (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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