Sunday, August 22, 2010

Federal Circuit Judge Dyk in Intervet v. Merial Dissent Questions Whether Isolated DNA is Patentable Subject Matter: Relevant to Myriad Case Appeal

At the Genomics Law Report from Robinson Bradshaw & Hinson in Swine Still Soaring: Federal Circuit Judge Expresses Sympathy for Myriad Analysis, John Conley and Allison Williams Dobson report that Federal Circuit Judge Timothy B. Dyk in his Intervet v. Merial dissent raises the cardinal question as to whether isolated DNA is patentable subject matter.

Dyk's dissent is important as a member of the Federal Circuit to whom the Myriad case has been appealed, challenging a ruling by Judge Robert W. Sweet in the U.S. District Court for the Southern District of New York, according to which an isolated DNA sequence is not patentable subject matter.

Given the ill-considered U.S. Supreme Court (SCOTUS) decision in Bilski finding business methods to be patentable subject matter, we have become somewhat skittish and skeptical about what the courts will decide in this legal arena.

Our own view is that if a company isolates a particular DNA sequence and can figure out a way to commercially exploit that knowledge and know-how, more power to them, but we would never give them a patent for what is essentially a law of nature.

If a DNA sequence is "part" of any living organism, human, swine or otherwise, then why should any man-made enterprise be given a monopoly to exploit that particular God's work?

My understanding of the U.S. Constitution is that an inventive PRODUCT which encompasses such a DNA sequence could of course be patented, but not the DNA sequence itself. Why do the courts have such a hard time with this?

Crossposted from LawPundit.

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