Artful Prior Art and the Quality of DNA Patents

61 Pages Posted: 3 Mar 2006

See all articles by Andrew Chin

Andrew Chin

University of North Carolina School of Law

Abstract

In reviewing patent applications and prior art references in biotechnology, the patent system often focuses on the extent to which these documents explicitly disclose structural formulae for specific nucleic acid molecules. This Article argues that this approach to patentability has caused well-known generic and methodological references to be disregarded as potentially relevant prior art. To provide empirical support for this doctrinal argument, this Article also describes the creation and publication of an "artfully drafted" prior art reference that provides an enabling disclosure of more than 11 million DNA sequences on CD-ROM and has already been cited in a number of patents and patent applications. The reference is still too small to offer a complete solution to the problems caused by the patent system's approach. Because the size of the reference is constrained only by the capacity of the CD-ROM, however, the reference provides a "proof of concept" that may be generalized and extended as more capacious storage media become available.

Suggested Citation

Chin, Andrew, Artful Prior Art and the Quality of DNA Patents. Alabama Law Review, Vol. 57, 2006; UNC Legal Studies Research Paper No. 06-4. Available at SSRN: https://ssrn.com/abstract=887420

Andrew Chin (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall
100 Ridge Road
Chapel Hill, NC 27599-3380
United States
919-962-4116 (Phone)

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