The United States Justice Department Opined that Genes Should Not Be Eligible for Patents
This marked a reversal in the government’s longstanding thinking that genes were indeed patentable as reported by Andrew Pollack’s recent story in the New York Times.
That crazy, fascinating sometimes incomprehensible world that lives at the intersection of biotechnology and intellectual property got quite a jolt last week when, in a court filing, the United States Justice Department opined that genes should not be eligible for patents. The rationale behind the position shift: genes are the product of nature, so humans should not be able to claim any proprietary right to them.
This marked a reversal in the government’s longstanding thinking that genes were indeed patentable as reported by Andrew Pollack’s recent story in the New York Times. As Pollack explains, the Patent and Trademark Office has issued thousands of patents on an estimated 20 percent of human genes. But in its brief — filed as an amicus brief in a case pending in front of the Federal Circuit involving genes linked to ovarian and breast cancer — the government said that it now believed that merely isolating a gene without transforming it in some way does not change its nature and therefore does not justify patent protection.
This underscores a growing problem in the intellectual property community affecting not only patents, but trademarks and copyrights as well. As creators of inventions and expressive content borrow more and more from each other (and nature in the gene patent example), the question of what can be and cannot be protected becomes more complicated. Ultimately, the law may be moving away from proprietary rights and toward a public domain model with regard to certain categories of copyrights, patents and trademarks.
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