Let Someone Else Deal With It: Patent Law’s Attempts To Define A “Human Organism”
For Patentability
Dev Narasimhan
On September 16, 2011, the America Invents Act was signed, moving the United States
from a first-to-invent to a first-to-file system, aimed at reducing patent backlog and litigation.
However, a provision that prohibits patents on human organisms will likely create problems,
because Congress has been unsuccessful in properly defining a human organism. Europe utilizes
the Trade-Related Aspects of Intellectual Property Rights Agreement to determine patents based
on morality laws, and the European Patent Convention. The United States, however, faced much
litigation on patentability due to its broad patent laws. Patentable subject matter was determined
through many cases, most recently Myriad and Prometheus. Still, both the courts and Congress
are unable to define what a human organism is. Qualitative and quantitative evaluations of
human characteristics have been considered, but a proposed approach to defining a human
organism may have to be utilized, one which includes considering the moral implications of
patenting such an invention. While special interest groups will likely oppose such patents, it is
up to Congress and the courts to do their diligence so that the patent system will encounter
minimal fuss.