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Patenting nature-a comparative perspective.

Rochelle C Dreyfuss1, Jane Nielsen2, Dianne Nicol2

  • 1Engelberg Center on Innovation Law and Policy, New York University School of Law, New York, NY 10012, USA.

Journal of Law and the Biosciences
|May 31, 2019
PubMed
Summary

US Supreme Court decisions have made patenting natural products difficult. Australia

Keywords:
AustraliaBRCAMayoMyriadPatent eligibilityUSAnucleotide sequences

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Area of Science:

  • Biotechnology patent law
  • Intellectual property in life sciences

Background:

  • Recent US Supreme Court decisions, including Mayo Collaborative Services v Prometheus Laboratories and Association for Molecular Pathology v Myriad Genetics, Inc., have significantly altered the patent eligibility landscape for natural products and processes.
  • These rulings have raised concerns about the ability of the patent system to incentivize the development of new therapies and research tools.

Purpose of the Study:

  • To critically analyze the impact of recent US Supreme Court decisions on patent eligibility for natural products.
  • To explore alternative approaches to patent law, drawing on the Australian experience, to foster innovation in biotechnology.

Main Methods:

  • Critical analysis of US Supreme Court and lower court decisions on patent eligibility.
  • Case study comparison with Australian patent law and court rulings, specifically D'Arcy v Myriad Genetics, Inc.
  • Examination of Australian post-grant options such as experimental use, compulsory licensing, and government use.

Main Results:

  • US patent law reforms are being considered to address challenges in patenting natural products.
  • Australia offers a nuanced approach to patent eligibility and possesses post-grant mechanisms to manage patent monopolies.
  • The Australian model provides valuable lessons for the US in balancing innovation incentives with access to patented technologies.

Conclusions:

  • The US faces increasing difficulties in using patent law to encourage therapeutic development due to recent eligibility standards.
  • Australia's experience demonstrates a feasible, nuanced approach to patent eligibility and post-grant management.
  • While direct replication is impractical, the US can learn from Australia's strategies for patenting nature.