Patenting Natural Products: Myriad and Modern Medicine- A Comparative Perspective on Patentability

Rochelle Dreyfuss
Pauline Newman Professor of Law at the NYU School of Law
Co-Director, Engelberg Center on Innovation Law & Policy
Co-Director, Competition, Innovation, and Information Law Program

On April 5, 2018, CeBIL will host Rochelle Dreyfus. The topic of discussion will be Dreyfuss’s paper with Dianne Nicol ‘Patenting Natural Products: Myriad and Modern Medicine- A Comparative Perspective on Patentability.’  The paper examines the Myriad decisions in the United States and Australia, which bar patents on naturally occurring products – specifically, on isolated genes. These decisions leave many open questions on the patentability of products and processes that duplicate (or come close to duplicating) material found in nature. They release material for free use by researchers and for patient care. However, they also endanger the future of privately-supported research in the life sciences.  The two decisions are, however, not identical and their local impact also appears to be considerably different. Dreyfuss’s paper will explore these differences.  First, an examination of whether the Australian decision suggests limiting principles is presented: a path to a patent law that deals more successfully with dual-use technologies (inventions that are simultaneously research inputs and commercial outputs). Secondly, the paper looks at the factors in Australian practice that ameliorated the effects of gene patenting prior to the decision in Myriad and suggests ways in which US law could better reflect those factors to create greater certainty for all stakeholders.

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