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Hastings Science and Technology Law Journal

Abstract

The district court's decision in Ass'n for Molecular Pathology v. U.S. Patent & Trademark Office (the Myriad litigation) that isolated DNA does not constitute patentable subject matter because the isolated DNA is not markedly different from the naturally occurring DNA sequence redrew the lines of patentable subject matter. The Federal Circuit has subsequently overturned that holding; however, it remains unclear whether gene patents serve the patent system's underlying objective to encourage innovation. For the most part, courts have defined what constitutes patentable subject matter, but as the Myriad litigation demonstrates, courts may not be the best institution to consider these complex policy issues. In light of the Myriad litigation, this Note examines whether there are better institutional alternatives.

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