Jonah D. Jackson
89 Texas L. Rev. 1453
In this Note, Mr. Jackson argues that the “product of nature” and “isolation and purification” doctrines of patent law require the exclusion of gene patents encompassing functional genetic information. Under the product of nature doctrine, there can be no patents for laws of nature, physical phenomena, and abstract ideas. But under the isolation and purification doctrine, genetic material, despite being a naturally occurring substance, is patentable when separate from its naturally occurring environment. According to a 2005 estimate, 20% of the human genome was already subject to issued patents.
Jackson first introduces the basic science of genes and argues that they are best conceived of as carriers of information with unique properties significant to the question of patentability. He then explains both the product of nature and isolation and purification doctrines and identifies the rationales behind them. These doctrines currently permit the patenting of genes. Jackson argues that gene patents encompassing functional genetic information should be excluded from patentability under the product of nature doctrine. This doctrine is concerned with excluding subject matter with a broad scope and of a fundamentally essential nature both because of economic consequences of patenting such subject matter and the broader implications to a democratic society.
Next, Jackson breaks down the economic and moral arguments against gene patents before tying them to both the characteristics of genetic information and the doctrines previously described. Lastly, he discusses the prospects for exclusion of genetic information from patentable subject matter and takes up some objections. For example, some defenders of gene patents argue that thirty years of jurisprudence should not be overturned when the research on the negative consequences of gene patents is still equivocal. Jackson writes that this assumes gene patents were justified in the first place, but he thinks the evidence demonstrates this protection was never truly necessary.
Jackson concludes that opponents of gene patents face an uphill battle. He hopes that this Note can help combat the inertia of current law and lead to an understanding that, like the heat of the sun, genes are unpatentable products of nature.