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 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 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.

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 Peer effects on the United States Supreme Court

2021 ◽  
Vol 12 (3) ◽  
pp. 981-1019 ◽  
Author(s):  
Richard Holden ◽  
Michael Keane ◽  
Matthew Lilley
Keyword(s):  
Supreme Court ◽  
Peer Effects ◽  
Peer Group ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Mechanical Effect ◽  
Using Data ◽  
The Impact ◽  
Circuit Courts

Using data on essentially every U.S. Supreme Court decision since 1946, we estimate a model of peer effects on the Court. We estimate the impact of justice ideology and justice votes on the votes of their peers. To identify the peer effects, we use two instruments that generate plausibly exogenous variation in the peer group itself, or in the votes of peers. The first instrument utilizes the fact that the composition of the Court varies from case to case due to recusals or absences for health reasons. The second utilizes the fact that many justices previously sat on Federal Circuit Courts, and justices are generally much less likely to overturn decisions in cases sourced from their former “home” court. We find large peer effects. For example, we can use our model to predict the impact of replacing Justice Ginsburg with Justice Barrett. Under the the assumption that Justice Barrett's ideological position aligns closely with Justice Scalia, for whom she clerked, we predict that her influence on the Court will increase the Conservative vote propensity of the other justices by 4.7 percentage points. That translates into 0.38 extra conservative votes per case on top of the impact of her own vote. In general, we find indirect effects are large relative to the direct mechanical effect of a justice's own vote.

Two Hundred Years of Marbury v. Madison: The Struggle for Judicial Review of Constitutional Questions in the United States and Europe

2004 ◽  
Vol 5 (6) ◽  
pp. 685-701 ◽  
Author(s):  
Wolfgang Hoffmann-Riem
Keyword(s):  
United States ◽  
Judicial Review ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Thomas Jefferson ◽  
Court Decision ◽  
United States Supreme ◽  
The Right ◽  
Justice Of The Peace

This year we celebrate a United States Supreme Court decision that marks the beginning of modern jurisdiction over constitutional questions: Marbury v. Madison. This is all the more remarkable since, when it was decided two hundred years ago in 1803, it was controversial and many still maintain it was wrongly decided. Chief Justice Marshall ruled on a dispute which he had earlier had a hand in causing, since the alleged legal error – the untimely delivery of a commission to Justice of the Peace Marbury – fell within his area of responsibility as Secretary of State. He dismissed the petition because the incorrect legal procedure had been chosen. However, he did not examine this question at the outset but – contrary to the accepted procedural rules of his time – at the end. This left room for a wide-ranging discussion of the right of judicial review, which was not required by law, and was, therefore, obiter dicta. Thomas Jefferson later referred to this discussion as the Chief Justice's “obiter dissertation.” Of course, Adams himself contended that the case turned on the judicial right of review, since this was a component of his argument that the petition should be dismissed.

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 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.

United States: Supreme Court Decision in United States v. Alaska (Status of Cook Inlet as Historic Bay)

1975 ◽  
Vol 14 (4) ◽  
pp. 1014-1024
Keyword(s):  
United States ◽  
Supreme Court ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
United States Supreme ◽  
Cook Inlet

Proof held insufficient to establish Cook Inlet as a historic bay, and hence the United States, as against Alaska, has paramount rights to the land beneath the waters of the lower, or seaward, portion of the inlet.

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