scholarly journals Edifying Thoughts of a Patent Watcher: The Nature of DNA

2016 ◽  
Author(s):  
Dan Burk
Keyword(s):  
Innovation Policy ◽  
United States Supreme Court ◽  
The United States ◽  
The Other ◽  
United States Supreme ◽  
Human Genes ◽  
Material Environment ◽  
Myriad Genetics ◽  
Patentable Subject Matter ◽  
Gene Patenting

In the pending case Myriad Genetics v. Association for Molecular Pathology, the United States Supreme Court will consider the patentability of human genes under the "product of nature" doctrine. Patentable subject matter is generally held to encompass materials and artifacts created by humans, and not that which exists independently in nature. However, it is not clear that this is a meaningful or helpful distinction. Given on one hand that the concept of a gene is a human construct, and on the other hand that all human creations are drawn from the material environment, the question of gene patenting is better addressed as a matter of innovation policy than of imponderable labeling.

scholarly journals Anticipating Patentable Subject Matter

2016 ◽  
Author(s):  
Dan Burk
Keyword(s):  
United States ◽  
Subject Matter ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
The Public ◽  
Public Benefit ◽  
Human Genes ◽  
Patentable Subject Matter ◽  
Gene Patenting

By the summer of 2013, the United States Supreme Court should issue an opinion in Myriad v. AMP, a case dealing with the patentability of human genes, including "cDNA" molecules that are created in the laboratory. Opponents of gene patenting have argued that such molecules should be deemed unpatentable "products of nature" because, statistically, such molecules might sometimes be fortuitously created in human cells. But this argument improperly imports into patent law's section 101 subject matter analysis the doctrine of inherency from section 102's provisions on novelty. And, if inherency is to be imported into section 101, the proper standard for patentability would be the "public benefit" criteria that has been developed in section 102 consideration of inherency. Under the "public benefit" standard, Myriad's cDNAs would constitute patentable subject matter.

scholarly journals Are Human Genes Patentable

2016 ◽  
Author(s):  
Dan Burk
Keyword(s):  
Genomic Dna ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
Logical Structure ◽  
The United States ◽  
Dna Molecules ◽  
Human Dna ◽  
Human Genes ◽  
Myriad Genetics ◽  
Patentable Subject Matter

This editorial examines the logical structure of the United States Supreme Court decision in Myriad Genetics v. AMP, regarding patents on human DNA. In the first half of the opinion, a unanimous court holds that genomic DNA molecules derived from human cells are unpatentable products of nature because they have the same informational content, and hence the same function, as native DNA. But in the second half of the opinion, the Court holds that complementary DNA molecules generated in the laboratory are patentable over native sequences because they have a different structure. These two conflicting rationales leave the law of patentable subject matter indeterminate, and far more incoherent than before the Court intervened.

scholarly journals The Inventive Concept in Alice Corp. v. CLS Bank Int'l

2016 ◽  
Author(s):  
Dan Burk
Keyword(s):  
United States ◽  
Supreme Court ◽  
Subject Matter ◽  
United States Supreme Court ◽  
The United States ◽  
European Patent ◽  
United States Supreme ◽  
European Patent Convention ◽  
Patentable Subject Matter ◽  
Short Essay

In its recent patentable subject matter opinion in Alice Corp. v. CLS Bank Int'l, the United States Supreme Court articulated a two-step patent eligibility test that hinges on the presence of an "inventive concept" in the patent claims. This short essay considers the connection between the "inventive concept" requirement in the Alice Corp. test and the requirement of an "inventive step" or non-obviousness requirement for patentability, by relating the Supreme Court's holding to similar decisions considering patentable subject matter under the European Patent Convention.

scholarly journals Should the New Zealand Parliament Allow the Intellectual Property Office of New Zealand to Continue to Grant Patents for Isolated Human Genes?

2013 ◽  
Vol 44 (1) ◽  
pp. 91
Author(s):  
Ruth Upperton
Keyword(s):  
United States ◽  
New Zealand ◽  
Intellectual Property ◽  
United States Of America ◽  
The United States ◽  
Property Law ◽  
Human Genes ◽  
Legal Perspective ◽  
Myriad Genetics ◽  
Patentable Subject Matter

It is time for New Zealanders to decide whether we want to allow patents over isolated human genes. In making this decision, we should take heed of the pitfalls other jurisdictions have encountered in this area. In this article, I determine the approach New Zealand intellectual property law should take to the patenting of isolated human genes, with reference to the arguments and issues raised by the Myriad Genetics litigation in the United States of America. I conclude that a nuanced approach should be adopted. Isolated human genes are not patentable subject-matter from a legal perspective; however, patents in the field of gene therapeutics should be allowed on policy grounds.

Religion by Permission of the Government

Worldview ◽  
1974 ◽  
Vol 17 (12) ◽  
pp. 31-35
Author(s):  
Frank Patton
Keyword(s):  
United States ◽  
New York ◽  
Church And State ◽  
United States Supreme Court ◽  
The United States ◽  
The Other ◽  
United States Supreme ◽  
Estate Taxes ◽  
The Government ◽  
The City

In a 1970 decision the United States Supreme Court approved the exemption of church property from city real estate taxes, noting that “separation of church and state” was thereby well served (Walz v. Tax Commission of the City of New York). The Court stated:The exemption creates only a minimal and remote involvement between church and state and far less than taxation of churches. It restricts the fiscal relationship between church and state, and tends to complement and reinforce the desired separation, insulating each from the other.

The Diversion of Interstate Waters in the United States

1938 ◽  
Vol 32 (5) ◽  
pp. 907-921
Author(s):  
James Simsarian
Keyword(s):  
United States ◽  
New Mexico ◽  
Supreme Court ◽  
United States Supreme Court ◽  
Rio Grande ◽  
The United States ◽  
The Other ◽  
United States Supreme ◽  
The Supreme Court

Two cases which are concerned with the diversion of the waters of interstate streams were before the United States Supreme Court in the October term of 1937. One of them, Texas v. New Mexico, will be withdrawn from the Court docket when the Rio Grande compact signed by representatives of Colorado, New Mexico, and Texas and a representative of the United States on March 18,1938, enters into effect. The other case, Nebraska v. Wyoming and Colorado, was first argued before the Supreme Court in 1935. In May, 1938, the Court granted the petition of the United States for permission to intervene. Further written briefs and oral arguments were to be considered by the Court when the fall term of 1938 opened.

scholarly journals The Curious Incident of the Supreme Court in Myriad Genetics

2016 ◽  
Author(s):  
Dan Burk
Keyword(s):  
Supreme Court ◽  
Subject Matter ◽  
Laws Of Nature ◽  
United States Supreme Court ◽  
The United States ◽  
United States Supreme ◽  
The Supreme Court ◽  
Lower Courts ◽  
Myriad Genetics ◽  
The Relationship

Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court's silence regarding Mayo leaves uncertain the relationship between the "products of nature" doctrine that serves as the basis for the Myriad decision, and the "laws of nature" doctrine that has been the basis of nearly all of its other subject matter cases. In this paper I assemble the clues in the laws of nature cases to suggest what the Court might have said or might still say regarding products of nature.

Supreme Court Behavior in Racial Exclusion Cases: 1935–1960

1962 ◽  
Vol 56 (2) ◽  
pp. 325-330
Author(s):  
S. Sidney Ulmer
Keyword(s):  
United States ◽  
Civil Rights ◽  
Supreme Court ◽  
Subject Matter ◽  
Simple Procedure ◽  
United States Supreme Court ◽  
The United States ◽  
The Other ◽  
United States Supreme ◽  
Racial Exclusion

The United States Supreme Court is often guided by rules of law which make the disposition of cases depend upon singular combinations of circumstances. It is a relatively simple procedure to go through the cases in a subject matter area and compile a list of the facts the justices seem to have considered material to their solution of the issue at hand. But the identification of the peculiar combinations of events which push the decisions in one direction or the other is more difficult. The number of possible combinations is almost endless: with as few as twenty specified circumstances there are more than one million possible combinations. And the weight of a particular circumstance may depend on the combination of factors in which it appears.Fred Kort has pointed to the “concrete differentiation of factual elements” which seem decisive in cases involving such procedural civil rights as protection against unreasonable searches and seizures, coerced confessions, and unfair trial procedures.

scholarly journals Patenting of Human Genes: The United States, Canada and Australia Case Law

2019 ◽  
pp. 166-173 ◽  
Author(s):  
D. V. Ponomareva
Keyword(s):  
United States ◽  
Case Law ◽  
The United States ◽  
Patent Law ◽  
Point Of View ◽  
Foreign Countries ◽  
Human Genes ◽  
Biomedical Technologies ◽  
Myriad Genetics ◽  
Gene Patenting

The paper is a review of the case law of the United States of America, Canada and Australia, in which an attempt is made to answer the question on possibility of human gene patenting. The paper substantiates the relevance of this issue, examines the ethical aspects of gene patenting. The author analyzes the landmark and most significant cases from the point of view of the development of patent law of foreign countries: Diamond v. Chakrabarty (USA), Association for Molecular Pathology v. Myriad Genetics (USA), Myriad v. Cancer Voices (Australia), The Children’s Hospital of Eastern Ontario (CHEO) v. Transgenomic (Canada). In the analysis, the author gives special attention to the arguments and conclusions of judicial institutions regarding the patentability of human genes. A conclusion is drawn regarding the continuity and possible harmonization of legislation and judicial practices of both the states mentioned in the paper and countries that have just embarked on the development of biomedical technologies.

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