McAfee & Taft intellectual property attorney Matt Gibson was featured in The Oklahoman discussing a recent federal court decision on the patentability of genetic material and the ruling’s impact on the biotechnology industry.
Gibson explains that “a patent can be obtained for any new and useful process, machine, manufacture or composition of matter or any new and useful improvement thereof,” and that the law is generally interpreted broadly, excluding only laws of nature, physical phenomena and abstract ideas. However, when things found in nature, such as genetic material, are modified to become markedly different, they can become eligible for patent protection.
Though patent protection is generally not granted to genetic material, the U.S. Patent and Trademark Office has allowed patenting of isolated, purified forms of genetic material. However, in Association for Molecular Pathology v. Myriad Genetics, the court found that genetic material is ineligible for patent protection. “The plaintiffs challenged the validity of certain patents directed to the nucleic acid sequence for the BRCA1 and 2 genes. The presence of specific mutations in these genes is associated with the increased risk of breast an ovarian cancer,” Gibson explained. He went on to say the court reasoned DNA performs the same function regardless of whether it is inside or outside the body and that isolated genetic material is not markedly different than naturally-occurring genetic material.
When asked about the impact on the biotechnology industry, Gibson told The Oklahoman the instant ramifications are uncertainty and anticipation, but if upheld on appeal to the United States Court of Appeals for the federal circuit, the implications may be significant and far reaching.
You can read the entire article here