Intellectual Property Law

New Matter FALL 2014, Volume 39, Number 3

Monsanto and Myriad: Is the Supreme Court Rendering Consistent Decisions When it Comes to Human Versus Non-Human Gene Patentability?

Dana Tykocinski

Liner LLP

As Watson and Crick’s discovery of the biological code of life has spiraled into the subsequent mapping of nearly the entire genetic code of numerous plants and animals, rapid advances in genomic technologies and next generation sequencing have made the control of whole genomes a reality. These advances should help to elucidate genetic factors underlying diseases and physical characteristics and traits. Human genome patentability has recently pushed to the forefront of legal debates due to these advances. The implications of this sort of revision "Mother Nature’s" work (or at least more personal subject matter) have only recently become an issue and have led to contradictory decisions. The most recent Supreme Court decision in the area of human genome patentability, Ass’n for Molecular Pathology v. Myriad Genetics, Inc. ("Myriad"),1 compared to one of the more recent non-human genome patent cases, Bowman v. Monsanto Co. ("Monsanto"),2 demonstrates the Court’s ambivalent and possibly inconsistent approach towards human versus non-human genome patentability.

In a very basic sense, the Myriad decision does not correspond with the Supreme Court’s proclivity towards expanding biotechnology patents that was demonstrated in Monsanto. Myriad decreases patent rights while Monsanto safeguards them. In Monsanto, the court upheld a decision preventing a farmer from reproducing patent-protected soybeans for subsequent plantings. In Myriad, the Court ruled that DNA as it exists in living organisms is not patentable. However, more significant than the result is the different reasoning that the Supreme Court seems to apply in the two cases. It applied a more calculated, economically motivated cost-benefit analysis approach in Monsanto (the non-human genome case) and a morally-motivated assessment harping on the extent to which man may control or own "nature" in Myriad (the human genome case).

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