Leave it to the Patent Doc blog to put the pro-gene patent arguments into perspective. The blog's commentary on the federal government's (specifically Department of Justice) amicus filing in the Myriad gene case appeal is largely critical of the goverment position.
The PD blog points out the DOJ seems to be trying to be all things to all people as a general criticism but specifically criticizes the DOJ brief as showing little evidence of "background [knowledge] in science, technology or patent law". The author, Kevin Noonan, notes that no USPTO lawyers are listed on the brief.
The government's brief describes a tight-rope walk between DNA that is the subject of "human manipulation" and is patent eligible, and "merely isolated" DNA which is not. According to Noonan, the "seeming ignorance of the consequences of the patent-eligibility criteria espoused by the government on a wide range of fields important to 'the national economy, to medical science, and to the public health' is disturbing as well as contrary to sound patent policy."
From Noonan's perspective, the government's new position on "merely isolated" genes patents eligibility if applied to "all natural products", "will prevent protection (and thus retard commercialization) of any useful compound found in plants, microorganisms, animals, etc." - including antibodies, antibiotics, antisense and small interfering RNAs, hormones, metabolites and proteins. He further notes a "natural product" may reflect natural law or phenomenon of nature but that is not the same as claiming the phenomenon or natural law.
To further confuse matters, the Myriad appeal raises a host of procedural questions as to whether original plaintiffs had standing to sue in the first place. It's possible the Federal Circuit could reverse Judge Sweet's decision without ruling on the merits of the gene patent argument - leaving that for another day. It's also unclear whether the USPTO will now adopt the patent eligibility position advocated by the DOJ in its brief. It is clear as mud.
Posted by Bruce Lehr November 1st 2010.