Patentable Subject Matter - Policy Controversies

Policy Controversies

The question of what should and should not be patentable subject matter has spawned a number of battlegrounds in recent years, setting against each other those in each area supporting patentability, claiming that patents would cause increased innovation and public good, against opponents with views that patentability is being sought only for private good but would do public harm.

Flashpoints have included the patenting of naturally occurring biological material, genetic sequences, stem cells, "traditional knowledge," programs for computers, and business methods.

In March 2010, a federal district court judge in the Southern District of New York ruled that purified DNA sequences and the inventions using them are unpatentable. As has been discussed, Judge Sweet relied entirely upon Supreme Court precedent and ignored contrary case law of the Federal Circuit Court of Appeals to conclude that isolated DNA is of the same fundamental quality as natural DNA and is thus unpatentable under section 101 of the Patent Act; and that the method claims of the patents were abstract mental processes that were also unpatentable. His rationale is controversial and his ruling has been appealed to the Federal Circuit.