While there have been mixed opinions as to whether gene patents were dead in light of Prometheus,this Article argues that a proper understanding of patent law, genomics, and public policy concerns should lead to no other result. The primary focus of this piece is to rebut certain vested interests in the biotechnology industry and affirm the normative claim that gene patents improperly fetter genomics research and development. First, through the lens of the Myriad case, we will recount why there was such a strong public interest movement against recognizing such patents. Specifically, we will show how patents on naturally occurring gene sequences and complementary DNA (cDNA) derived from these sequences stifle research, impede access to affordable testing, and detrimentally affect future developments in the cancer world. Second, we will briefly examine the Supreme Court’s legal reasoning in Prometheus and how the Federal Circuit did not address the Court’s concerns on remand. Finally, we will argue that, in order to significantly advance, the field of genomics needs freedom from ill-considered monopolies over naturally occurring DNA sequences as much as the ancients needed fire.
Genomics Unbound: The Scientific and Legal Case against Patents Based on Naturally Occurring DNA Sequences
, 13 Nev. L.J. 668
Available at: http://digitalcommons.law.uga.edu/fac_artchop/919