Federal Judge Hints at Views on Gene Patents

by jeeg 31. August 2010 02:50

In a recent dissent in an unrelated patent case, Federal Circuit Judge Timothy B. Dyk in Intervet v. Merial raises the question as to whether isolated DNA is patentable subject matter.  Dyk's dissent is important as a member of the Federal Circuit to whom the Myriad case has been appealed, challenging a ruling by Judge Robert W. Sweet in the U.S. District Court for the Southern District of New York that found that an isolated DNA sequence is NOT patentable subject matter.

Dyk's dissent has been criticized by many patent boosters, particularly because the issue of isolated gene patents wasn’t raised by either party or addressed by the district court or the majority opinion.  His comments do appear to signal what side of the gene patent debate he is on and adopts many of the arguments made by the ACLU in its arguments for the plaintiffs and laid out by Judge Sweet in his ruling.  He correctly point out that "neither the Supreme Court nor this court has directly decided the issue of the patentability of isolated DNA molecules." He then goes on to state: 

"Thus, it appears that in order for a product of nature to satisfy section 101, it must be qualitatively different from the product occurring in nature, with “markedly different characteristics from any found in nature.” It is far from clear that an “isolated” DNA sequence is qualita-tively different from the product occurring in nature such that it would pass the test laid out in Funk Brothers and Chakrabarty. The mere fact that such a DNA molecule does not occur in isolated form in nature does not, by itself, answer the question. It would be difficult to argue, for instance, that one could patent the leaves of a plant merely because the leaves do not occur in nature in their isolated form."

It would appear that Judge Sweet's reasoned opinion has found some receptive ears in the Federal Circuit.  This should get interesting.





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