| Since 1982 when the first patent filed relating to gene in America, the debate about the issue whether gene could be patented has never stopped. The opponents think it is inconsistent with the US patent law if the gene could be patented because the patentee maybe exclude others from researching the genes and the access to the treatment given to the patients will be inhibited.The issues relating to gene patents attract widespread public attention as the Myriad case in 2013. The Supreme Court of the United States held that isolated DNA molecules are product of nature and not patent eligibility. The decision in Myriad case made by the Supreme Court defers to the USPTO’s policy and the Federal Circuit’s practice.The US patent law permits anything under the sun made by man could be patented, but the Court’s precedents provide three specific exceptions to patent law broad patent-eligibility principles: laws of nature, physical phenomena, and abstract ideas, which called the product of nature doctrine. In accordance with product of nature doctrine, the isolated DNA molecules are human-made and patent eligibility. However, the Supreme Court revised the product of nature doctrine and created the markedly different test bordering up the standard of the patent eligibility of invention to exclude the isolated DNA molecules.The Supreme Court denied the patent eligibility of the isolated DNA molecules to resolve the conflicts caused by the abuse of BRCA 1/2 patent rights among the Myriad company, the patients and the research institutions. What the Supreme Court did in Myriad case is impelled by necessity since the regulations to preventing the abuse of patent have strict requirements in common law to the extent that exist in name only. As a consequence, America ought to look deeply inside the patent law and revise it, such as adding the provisions of experimental exception and compulsory license to restrict the abuse of rights, to achieve the goals of the patent law. |
PDF Full Text Request