The Patent Doc blog related that Wake Forest Law Professor Simone Rose charges [in The Huffington Post] that the Federal Circuit court failed in its duty as "keeper of the Constitution" in rendering its decision in AMP v. USPTO. Specifically, Professor Rose takes issue with the Court allowing the BRCA gene sequences (or any gene sequences) to be patentable subject matter instead of "patent-ineligible products of nature".
Dr. Rose argues the court erred in its analysis by allowing chemical differences between native genes and isolated DNA sequences to be the primary criterion versus looking at the more important biological identity function of the gene sequences.
Going further, Professor Rose also argues that the Court erred in failing to balance the effects of exclusive rights granted under a patent with providing broader rights of accesss to basic knowledge as required under the Patent Clause in the Constitution. She claims that granting patent rights to genes prevents access to these basic research tools during the term of the patent and blocks progress in direct violation of the clause.
Finally, Professor Rose believes that had the Court properly invalidated the BRCA patents then the Congress would have been highly motivated to look at the proper legislative framework to govern the matter of gene patenting or not. And hopes that then, the environment would be set for "an appropriate legislative dialogue" to balance access and innovation.
Posted by Bruce Lehr Aug 23rd 2011.