December 01, 2019 Feature

Patenting Nature

Rochelle C. Dreyfuss

©2019. Published in Landslide, Vol. 12, No. 2, November/December 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

In May 2019, Senators Thom Tillis and Chis Coons proposed legislation that would overturn judicially created exceptions to § 101 of the Patent Act for laws of nature, natural phenomena, and abstract ideas.1 Although nonstatutory, these exceptions to patentable subject matter have deep roots in U.S. law and have long required courts to engage in the difficult task of distinguishing between an insight about nature and a “valuable application of it to the arts.”2 The problem is episodic in that it arises whenever science makes a significant advance.3 However, in recent years the issue has surfaced in a particularly virulent form. The current batch of exciting discoveries are in the life sciences and personalized medicine, where the desire for advancement is acute, the cost of bringing products to market is high, and the public’s interest in access is particularly urgent. In addition, now that universities have entered the patent business, the pressure to patent upstream inventions—fundamental science discovered in academia—has increased, as has the frustration of many scientists.4

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