COMMENT
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents
Krysta Kauble* 
58 UCLA L. Rev. 1123

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Abstract

This Comment argues that the First Amendment should be used as a lens for determining whether something is a “natural phenomenon” for purposes of patent law. Patent law does not permit patents over natural phenomena; yet the U.S. Patent and Trademark Office (USPTO) has allowed patents over items that appear to be natural phenomena. Gene patents are one example. This Comment argues that genomic sequences should be considered natural phenomena. It also argues that because the current standards of the USPTO permit patents over these—and other—natural phenomena, there is a problem with the current patent standards. The problem is that the USPTO has upset the balance between preserving the rights of the patent holder and the public’s “right to know” about the information disclosed in patent applications. There currently exists no consistent standard for delineating which items are natural phenomena and which are not, and this permits many items that should be considered natural phenomena to obtain patents. This Comment argues that the First Amendment could offer a solution. Because First Amendment theory shares a focus on the public’s “right to know,” standards of First Amendment law can serve as a lens for determining whether an item is a natural phenomenon.


* Chief Comments Editor, UCLA Law Review, Volume 58. J.D. Candidate, UCLA School of Law, 2011; B.S., Northwestern University, 2008.

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