The Department of Justice's acting solicitor general has requested that the Federal circuit court allow him to present oral arguments in the DOJ's challenge to the US PTO's position allowing the patent-eligibility of isolated genes.
The Patent Doc blog recounts the circumstances of the curious matter - given that one arm of the Executive is challenging the policy and long-standing practice of another. It's Justice versus Commerce. DOJ wants to argue that natural products cannot be patent eligible - spurred by the Myriad decision - but having the spillover effect potentially of being applied to virtually any other biologic drugs. The Patent Blog's point -- taken to its extreme, is that acceptance that any "natural products" are patent ineligible could mean that any useful compound found in plants, microorganisms, animals, etc. would be without patent protection.
The upshot argued by the blog's writer is that it is unlikely a company will want to invest upwrds of $1 billion to develop a drug derived from a "natural proudct" in an environment where it is very uncertain as to whether it can obtain appropriate patent protection or not.
For now, we await the appearance before the Federal Court and perhaps this case ultimately will wend its way to the Supreme court.
Posted by Bruce Lehr Feb 18th 2011.
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