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Law in Context

Abstract from Volume 24 No 1 (2006) Patent Law and Biological Inventions

Wind of Change: In re Fisher and the Evolution of the American Biotechnology Patent Law

Yann Joly is a research associate of the Genetics and Society Project, Centre de Recherche en Droit Public, Université de Montréal; and he is a doctoral candidate at the Centre for Intellectual Property Policy, McGill Faculty of Law, Montreal, Quebec, Canada.

Following the end of the past century’s genetic gold rush, the US PTO and the American courts of justice have recently developed a more cau­tious and balanced approach to the patenting of DNA sequences. This approach uses a more restrictive application of the utility criteria along with a broad interpretation of the statutory research exception to limit considerably both the number and the strategic value of DNA patents. This article discusses the sources and the evolution of the judicial and administrative changes in this country’s application of the patent law to the biotechnology sector. It also provides an in-depth analysis of the landmark case, In re Fisher, which constituted a major step towards this new approach to biotechnology patenting. Other recent cases reflecting this repositioning will be commented on as well. It is the contention of the author that the American patent law has evol­ved toward a less permissive yet more rational approach toward patenting gene sequences. The modern patent system, in this case, has once again shown its capacity to adapt. The biotechnology sector, since the begin­ning of its mass development, has generated a number of com­plex chal­le­nges for the patent system and several controversial issues re­main to this day. Will the system, in time, also be successful at meeting these other important challenges raised by the biotechnology revolution?

(2006) Volume 24 No1 Law in Context 67

   
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