DNA patentability--anything but obvious.

Abstract

The DNA-sequencing blitz, made possible in the early 1980s by improved genetic technology, has descended on the patent office in the form of thousands of patent applications for sequences. Controversy over the obviousness of certain sequences has led to a string of recent cases in the United States Court of Appeals for the Federal Circuit (CAFC). In each of three opinions, the court held that DNA sequences are non-obvious, and therefore patentable. Due to a mysterious aversion by the court to apply the standard analyses for obviousness, coupled with a lack of scientific prowess, the CAFC's decisions lack both legal and technical coherence. Also, due to the time lag between invention, application, and appeal, much of the judicial rationale has been based on a level of technology a decade old--primitive by today's standards. A careful application of the obviousness standard in light of today's technology demonstrates that obviousness may yet pose a threat to biotechnologists.