Comments on: AMP v. Myriad: The End of Gene Patents? http://blogs.law.stanford.edu/lawandbiosciences/2012/08/17/amp-v-myriad-the-end-of-gene-patents/ Wed, 15 May 2013 21:56:51 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Jacob S Sherkow http://blogs.law.stanford.edu/lawandbiosciences/2012/08/17/amp-v-myriad-the-end-of-gene-patents/comment-page-1/#comment-23608 Jacob S Sherkow Tue, 21 Aug 2012 16:41:08 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2509#comment-23608 I see these as two separate issues. The first is whether the majority correctly rejects the argument that patents that bode poorly for public policy should be rejected under § 101. I agree that the court properly disposed of this argument. There's thin legal precedent--if any--to support the notion that § 101 serves as a vehicle to bar patents for public policy reasons. There was the issue with patenting human/animal chimeras in 1998--the USPTO forbade them stating that they would not allow the patenting of "monsters"--but that was enforced by a single PTO Commissioner and never challenged in court. Furthermore, Chakrabarty appears to serve as precedent supporting Myriad's § 101 "defense" against any public policy concerns: similar issues were raised in the Supreme Court about the patenting of "living things" and such arguments were roundly rejected. I think Chakrabarty, at a minimum, suggests that it's not the business of the circuit courts to second-guess patentability solely on public policy grounds. The second issue is whether the majority correctly rejects the plaintiffs' arguments that the patents preempt a fundamental principle. And I'll answer your question with a question: Just what, exactly, do we mean when we say things like "a fundamental principle," a "law of nature," or a "natural phenomenon"? I see these as two separate issues. The first is whether the majority correctly rejects the argument that patents that bode poorly for public policy should be rejected under § 101. I agree that the court properly disposed of this argument. There’s thin legal precedent–if any–to support the notion that § 101 serves as a vehicle to bar patents for public policy reasons. There was the issue with patenting human/animal chimeras in 1998–the USPTO forbade them stating that they would not allow the patenting of “monsters”–but that was enforced by a single PTO Commissioner and never challenged in court.

Furthermore, Chakrabarty appears to serve as precedent supporting Myriad’s § 101 “defense” against any public policy concerns: similar issues were raised in the Supreme Court about the patenting of “living things” and such arguments were roundly rejected. I think Chakrabarty, at a minimum, suggests that it’s not the business of the circuit courts to second-guess patentability solely on public policy grounds.

The second issue is whether the majority correctly rejects the plaintiffs’ arguments that the patents preempt a fundamental principle. And I’ll answer your question with a question: Just what, exactly, do we mean when we say things like “a fundamental principle,” a “law of nature,” or a “natural phenomenon”?

]]> By: hgreely http://blogs.law.stanford.edu/lawandbiosciences/2012/08/17/amp-v-myriad-the-end-of-gene-patents/comment-page-1/#comment-23596 hgreely Mon, 20 Aug 2012 23:11:24 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2509#comment-23596 Brenda Simon says: Great post, Jake. Do you agree with the majority’s statements about the public policy interests? In other words, do you believe any of the issues the majority states the “appeal is not about” have any bearing on whether the claims preempt a fundamental principle? Brenda Simon says:

Great post, Jake. Do you agree with the majority’s statements about the public policy interests? In other words, do you believe any of the issues the majority states the “appeal is not about” have any bearing on whether the claims preempt a fundamental principle?

]]> By: Brenda Simon http://blogs.law.stanford.edu/lawandbiosciences/2012/08/17/amp-v-myriad-the-end-of-gene-patents/comment-page-1/#comment-23591 Brenda Simon Mon, 20 Aug 2012 20:20:59 +0000 http://blogs.law.stanford.edu/lawandbiosciences/?p=2509#comment-23591 Great post, Jake. Do you agree with the majority's statements about the public policy interests? In other words, do you believe any of the issues the majority states the "appeal is not about" have any bearing on whether the claims preempt a fundamental principle? Great post, Jake. Do you agree with the majority’s statements about the public policy interests? In other words, do you believe any of the issues the majority states the “appeal is not about” have any bearing on whether the claims preempt a fundamental principle?

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