Ghosh, Samantak --- "Patenting human genes in the United States" [2017] ELECD 805; in Matthews, Duncan; Zech, Herbert (eds), "Research Handbook on Intellectual Property and the Life Sciences" (Edward Elgar Publishing, 2017) 41

Book Title: Research Handbook on Intellectual Property and the Life Sciences

Editor(s): Matthews, Duncan; Zech, Herbert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479443

Section: Chapter 4

Section Title: Patenting human genes in the United States

Author(s): Ghosh, Samantak

Number of pages: 15

Abstract/Description:

The rise and fall of gene patents in the United States parallels the expansion and contraction of patentable subject matter in the country. In the late 1970s to early 1980s, emerging technologies like biotechnology, and a patent-friendly political environment encouraged the US courts to expand the scope of patentable subject matter.There was a recognition that many of the discoveries in biotechnology, such as the isolation of genes and proteins were socially valuable and resource- and time-intensive.Patents were seen as a tool to incentivize such discoveries.The US Supreme Court felt that these nascent technologies ‘should receive liberal encouragement’.Gene patents arose out of this ‘[t]he more, the better’ approach prevalent with regard to patents at that time.Although, not without controversy, gene patents in the US survived pretty much unchallenged for almost three decades.However, the unease over them continued to grow over time for a number of reasons.By the early twenty-first century, the technology of isolating and sequencing DNA had become routine and much less expensive.At the same time, the growing number of patents issued on human genes increased concerns about their negative impact on downstream research and development.The political environment also started becoming less patent-friendly. The US Congress saw a numberof measures to either prohibit gene patents or curtail their scope.Although these measures failed to pass, they were an indication of the shifting tide.