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Nothing under the sun that is made of man

Andrew Torrance
Thursday, February 7, 2013

An article by Andrew Torrance, which contributed to a gene patenting symposium, appeared on the SCOTUSBlog. Torrance states in his introduction:

The Supreme Court may soon place its imprimatur on a principle that has been gathering force within patent law for several decades:  human beings constitute unpatentable subject matter.  In Association for Molecular Pathology v. Myriad Genetics, Inc., the Court will most likely answer its question – “Are human genes patentable?” – in the negative.  Synthetic DNA sequences, designed by humans, may be excluded from this prohibition, but the invalidation of patents claiming human genes will wipe out vast amounts of private investment, and be a body blow to the biotechnology industry.  However, this legal result will have been predictable through a careful reading of the entrails of judicial decisions, Congressional bills, and executive branch pronouncements about patents claiming human-related inventions, all of which have echoed the spirit of the Thirteenth Amendment by proscribing property rights – even intellectual property rights – in human beings.  To understand how patent law has evolved towards this result, one may trace the legal treatment of patents claiming human embryonic stem cells (“hESCs”), chemical products of human physiology, human thought, and, yes, human genes.  Woven together, these strands of evidence lead towards the likely rejection of human gene patents by the Supreme Court.

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