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August 16, 2012


In the long-running Myriad case, a split (2-1) CAFC panel (2010-1406) opined that a method for isolating a DNA sequence was not patentable, but that isolated DNA was. A confused Judge Bryson dissented with the observation that "a human gene is not an invention." DNA sequences are not genes. Genes are a conceptual mapping of various DNA strands to a presumed trait; something approaching mental fiction, considering how genetics actually works. So, while confused on the details, Bryson was right in the gist that isolated DNA is not an invention. The majority was positively bonkers that "the claimed molecules represents a nonnaturally occurring composition of matter" that deserved patent protection. Isolated DNA is an organic derivative, unchanged from its original form in chemical sequence (otherwise, the isolation would entirely miss the point), not a concocted chemical composition that even remotely represents invention, especially considering any and every method to obtain the compound is not novel. That withstanding, wherever one may want to draw the line on the originality of chemical extraction and isolation as a patentable chemical composition, the large point is that bits of the human genome are, for the moment, patentable subject matter. The public policy implications with regard to affordable advances in health research could not be more profound. The public discourse of this issue through the courts is still just getting started.

Posted by Patent Hawk at August 16, 2012 7:53 PM | ยง 101