In a case that has generated significant media attention, a U.S. district judge recently held that isolated DNA constitutes unpatentable subject matter. Association for Molecular Pathology (AMP) v. U.S. Patent and Trademark Office, No. 1:2009cv04515, 2010 U.S. Dist. Lexis 35418 (S.D.N.Y. April 5, 2010). The ruling is both surprising and potentially significant if upheld on appeal to the U.S. Court of Appeals for the Federal Circuit, because the patent office has granted gene patents for more than 30 years and these form the basis for the molecular diagnostics industry and the biopharmaceutical industry, more generally.
A patent is a property right that permits the owner to exclude others from making, using, selling or importing the patentable invention for a period of 20 years — an exclusivity intended as a reward for public disclosure of innovation. 35 U.S.C. 154. Yet not everything is patentable, either in the United States or the rest of the world.
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