Introduction

For over 150 years the Supreme Court has provided three categories of exceptions to patent eligibility under 35 U.S.C §101:  abstract ideas, laws of nature, and physical phenomena, since these are the basic tools of scientific and technological work.[1]  The Roberts Court has revised the standard for review of “abstract ideas” and “laws of nature” in Bilski v. Kappos and Mayo v. Prometheus, respectively.  The Court’s much awaited decision in AMP v. Myriad addressed the “physical phenomena” exception with respect to patents claiming isolated DNA.[2]

The recent decision in Myriad will have an impact reaching far beyond the patentability of isolated DNA.  Patent eligibility for isolated DNA is crucial for the continued growth of the biotechnology and diagnostics industries.  The decision, disallowing patenting of isolated DNA, will have a chilling effect on these industries.  Furthermore, the decision casts a cloud on … Read More »