Intellectual Property Law
New Matter FALL 2014, Volume 39, Number 3
Content
- 2014 New Matter Author Submission Guidelines
- Case Comments
- Cheerleading Uniforms and Copyright Separability
- Contents
- Copyright Interest Group
- Design Patents—Taking a Closer Look at These Valuable Assets
- Entertainment and Sports Law Interest Group
- In a Split Decision the Ttab Finds Redskins Disparaging Blackhorse v. Pro-Football, Inc. Cancellation No. 92046185 (T.T.a.B. June 18, 2014)
- Intellectual Property Section Executive Committee 2013-2014
- Intellectual Property Section Interest Group Representatives 2013-2014
- International Ip Developments
- Letter from the Chair
- Letter from the Editor-in-Chief
- Licensing Interest Group
- Litigation Interest Group
- MCLE Self-Study Article
- Ninth Circuit Report
- Patent Interest Group
- Preparing to Defend a Section 337 Action: What District Court Litigators Need to Know
- Raising Healthy Patents
- The Law of the Land
- The Licensing Corner
- Trademark Interest Group
- Uncle Sam Wants You! a Call to Pro Bono Service for Patent Practitioners
- Monsanto and Myriad: Is the Supreme Court Rendering Consistent Decisions When it Comes to Human Versus Non-Human Gene Patentability?
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).