On January 13th, AMP et al. filed a 59 page brief contended that human DNA, including DNA fragments, RNA and cDNA, should not be considered patent-eligible under 35 USC s. 101. There is a lot to read here, much of it argued and re-argued in past reviews, but a few points stand out—way out.
Petitioners’ arguments rely on three primary propositions. The first is that DNA is a natural product that is not “markedly changed” by isolation from the body, because it is “foremost an informational molecule.” But this argument is undercut by their argument that “[i]solation is a necessary step in any serious study, research, clinical or commercial use” and “it is currently not possible to use genes, including looking at or sequencing them, without removing or ‘isolating them’”. Brief at pages 41 and 5. Doesn’t that compel the conclusion of a change of some sort from the gene as it exists in vivo? Also, in conflating the sequence (…ATTAGGAA…) with the actual isolated molecule, AMP ignores a long line of precedent that holds that, e.g., MeCO2H, may contain information about the structure of acetic acid but it is not acetic acid – that a claim to a compound is directed to both its formula and its properties.
