Is Congress Finally Doing their Constitutional Duty?June 10, 2019

On June 4, 5, and 11, 2019 the Senate Intellectual Property Sub-Committee held hearings regarding the new proposed changes to patent statutes, including to Sections 100, 101, and 112. The Sub-Committee will be hearing from a total of 45 witness on both sides of the debate. Most of the attention during the June 4th and 5th hearings were focused on the reform to Section 101, as will likely the June 11th meeting. In fact, even prior to the hearings, the American Civil Liberties Union (ACLU) held an urgent phone briefing with members of Congress and staff about the proposed changes.

In their phone call, the ACLU, who was invited to the June 5th hearing, expressed concern that the new changes would abrogate the decisions of Myriad and allow the patenting of natural products again, including genes. The ACLU argued that allowing patents on naturally occurring products and genes “will prevent the discovery of novel treatments for diseases…” because it would also allow patenting of the naturally occurring associations between genes and diseases.

However, the ACLU seems to miss the entire point of what is intended by the Patent and Copyright Clause of the Constitution, which is to promote the progress of science and the useful arts. By disallowing the patenting of natural products, including genetic fragments and applied uses of naturally occurring associations, it is disincentivizing research into these areas. If the U.S. had never allowed the patenting of natural products, then drugs like tetracycline, penicillin, streptomycin, insulin, and many others would likely never have been developed because inventors would have not been motivated to perform even the basic research required to determine their properties.

As the Clause is under Article I, motivating the creation of inventions is the sole power of Congress. Therefore, it is up to Congress to determine if cases like Myriad, Mayo, and Alice have prevented the promotion of science and useful arts and if so, it is their Constitutional duty to abrogate these cases.

Oliver P. Couture is an Intellectual Property Attorney in the Biotechnology & Chemical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information, please visit the MVS website or contact Oliver directly via email at oliver.couture@ipmvs.com.

 

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