In 2013, the Supreme Court in Myriad held that DNA is a “product of nature” that is not patentable merely because it is isolated from the human body. The year before, the Supreme Court in Prometheus held that diagnostic tests that incorporate little more than a “law of nature” is not patent eligible. These two decisions altered the landscape of patent eligible subject matter under Section 101 of the patent statute. They not only impact the patent eligibility of isolated DNA or diagnostic tests, but they may also have far wider-ranging impact on other technological fields, including biotechnology and nanotechnology. This article delves into the history of cases leading up to these two decisions as a way to determine the exact scope of the decisions. In particular, the article looks at the parallel development of the “product of nature” and “law of nature” doctrines, and examines its culmination in Myriad and Prometheus. The article then looks at whether and to what extent the patentability of nanotechnology will be impacted. Nanotechnology is “the science of manipulating materials on an atomic or molecular scale.” By its very nature, nanotechnology incorporates products of nature and laws of nature. But the technology also creates new benefits and uses that may deserve patent protection. This article looks at both the current state of the law and policy reasons that must be considered in determining the patent eligibility of inventions in the field of nanotechnology.
Laura W. Smalley, Will Nanotechnology Products be Impacted by the Federal Courts’ “Product of Nature’ Exception to Subject-Matter Eligibility under 35 U.S.C. 101?, 13 J. Marshall Rev. Intell. Prop. L. 397 (2014)