Abstract:

Within patent law, the fundamental question has always been whether an invention can be owned and protected as an object of intellectual property law. This requires a steadfast exploration of the legislative requirements for patentability. However, before that can take place the object itself must be judged by the law in order for it to become an object of intellectual property. This therefore raises the more pressing question of what is the object? And how does the law determine what the object is? Albeit a simple question in traditional patent jurisprudence, the question has remained unanswered for many new technologies, DNA as one such technologies the patent system has historically struggled with and still does. This talk explores these questions – and the relationship between law and science more broadly – through a detailed analysis of how the law has constructed DNA and genetic subject matter, what it has judged these objects to be and the implications of this within the US patent system. Additionally, this talk will demonstrate the instability within these legal judgements, and the consequences of such instability in the law through the Myriad Genetics litigation in the US concerning the controversial BRCA1 and 2 gene patents.