The United States District Court for the Southern District of New York recently held in Association for Molecular Pathology v. United States Patent & Trademark Office that Myriad’s patent claims directed to isolated DNA molecules encoding human breast cancer susceptibility genes BRCA1/2 are not patent-eligible subject matter. Even though the court construed that the patent claims are directed to tangible chemical compounds, the overriding importance of unclaimed DNA sequence information renders claimed molecules as unpatentable products of nature. While the immediate impact of this decision is limited to Myriad’s patents-in-suit, this decision reflects the concern about the adverse effects of human gene patents in genetic testing. This comment analyzes the patent-eligibility and constitutionality of human gene patents. As alternatives to a total ban on human gene patents, this comment proposes narrowly tailored legislation to balance the public’s interest in access to human gene patents and the biotech industry’s incentives to invest capital to translate basic research to commercial products that ultimately benefit the public.
Miri Yoon, Gene Patenting Debate: The Meaning of Myriad, 9 J. Marshall Rev. Intell. Prop. L. 953 (2010)