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Washington Journal of Law, Technology & Arts

Abstract

In June 2013 the Supreme Court held that naturally occurring human DNA cannot be patented, but synthetically created DNA is patent-eligible. Though a major victory for patients’ rights, the holding of Association for Molecular Pathology v. Myriad Genetics appears to be the latest in a series of restrictions on patents and the human body, much to the annoyance of biotechnology companies. However, this case should not be viewed as the final word in patenting “natural phenomena.” Patent claims of genetic material are still viable when the claim details a new and useful improvement on the naturally occurring product or an application of the product to a process. Furthermore, the Myriad Court noted that extending the natural products rule too far would be against public policy, giving litigators room to explore the contours of this rule. This Article examines the limits of the Supreme Court’s decision and the avenues that potential patent seekers still have for making eligible patent claims on naturally occurring products and phenomena, as well as the processes for identifying such products and phenomena. It highlights the areas where the courts are likely to take a hard stance against patent eligibility and where opportunities still exist to claim a valid patent in three areas. First, though discovery of a natural process in its naturally-occurring state is now un-patentable, the Myriad holding signals that a variation on this natural state, no matter how slight, could make the product eligible for a patent under the “new and useful improvements” rule. Second, the “application of new processes” rule is unchanged by this case. Third, a public policy argument on the importance of protecting medical and genetic discoveries may be more relevant in light of Myriad’s broad holding.

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