While it might seem strange to discuss the patentability of DNA on a constitutional law blog, the U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. can be traced back to the founding fathers. While they likely could not have anticipated the advances inventors would make in mapping our genetic makeup, they did believe in promoting American innovation.
Article 1, Section 8, Clause 8, referred to as the Patent and Copyright Clause, authorized Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Under this mandate, Congress created the U.S. patent system for “new and useful” inventions.
While the Supreme Court’s Myriad decision largely focused on the language of 35 U. S C. § 101 regarding patent eligibility, several amicus briefs arguing against the gene patents referenced the constitutional foundation of the patent system. As highlighted by the American Bar Association:
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