Are Human Genes Patentable?
Dan L. Burk, Are Human Genes Patentable?, 44 IIC Int'l Rev. Intell. Prop. & Competition L. 747 (2013).
This editorial examines the logical structure of the United States Supreme Court decision in Myriad Genetics v. AMP, regarding patents on human DNA. In the first half of the opinion, a unanimous court holds that genomic DNA molecules derived from human cells are unpatentable products of nature because they have the same informational content, and hence the same function, as native DNA. But in the second half of the opinion, the Court holds that complementary DNA molecules generated in the laboratory are patentable over native sequences because they have a different structure. These two conflicting rationales leave the law of patentable subject matter indeterminate, and far more incoherent than before the Court intervened.