•  
  •  
 

Cardozo Public Law, Policy and Ethics Journal

Abstract

Human embryonic stem cell research represents an area of scientific progress that promises to deliver on the wonders mankind has thus far only seen in science fiction movies. However, ethical and legal concerns threaten to stifle research in an area often regarded as the holy grail of regenerative medicine. This Note analyzes the question in patent law of whether human embryonic stem cells constitute patentable subject matter under 35 U.S.C. §101 from a legal and policy perspective after the 2013 Supreme Court decision in Association for Molecular Pathology v. Myriad. The issue has generated recent interest and debate with Consumer Watchdog challenging the validity of the patent for human embryonic stem cells owned by the Wisconsin Alumni Research Foundation (WARF).

Notably, two doctrines have emerged governing the present day court's analysis of subject matter eligibility. First, the product of nature doctrine precludes patents on products that have no physically distinguishing characteristics from their natural products. Second, the preemption analysis precludes patents that preempt other researchers from using the underlying abstract idea, law of nature, or natural phenomena. This Note asserts that WARF's patent on human embryonic stem cells is not valid under either the product of nature doctrine or the preemption analysis. Furthermore, the policy implications of invalidating WARF's patent on human embryonic stem cells would open up research in an already contentious and strictly regulated area of scientific research. Delaying the grant of a patent in the area of human embryonic stem cell research would ensure that the public receives a social benefit in exchange for the exclusive rights conferred by the grant of a patent.

Disciplines

Health Law and Policy | Intellectual Property Law | Law | Medical Jurisprudence

Download

Share

COinS