Non-obvious and novelty requirements don’t block patenting genetic sequences – all genetic discovery for pathogens is new and non-obvious. Only section 101 excludes patents because of the requirement that it be a “human invention”
Alex Moss, 24 - the executive director of the Public Interest Patent Law Institute. She was previously at the Electronic Frontier Foundation and a patent litigator at Sullivan & Cromwell. After graduating from Stanford Law School, she served as a judicial clerk to the Honorable Timothy B. Dyk of the U.S. Court of Appeals for the Federal Circuit. “Patent Eligibility Limits are Vital to Innovation, Prosperity, and Public Health” 2/21,
At the hearing, many references were made to other requirements of the Patent Act, such as the requirement of non-obviousness, but none of them can do what the patent eligibility requirement does: prevent patents from issuing on products and laws of nature that are new discoveries, but not human inventions.
For example, eligibility law currently prohibits a patent on the isolated gene sequence of a new COVID-19 variant with unexpected properties that developed through naturally occurring mutations. Because that variant is new and its properties are unexpected, it would not be disclosed or rendered obvious by prior work in the field. Nevertheless, the variant, and its genetic information, is a product of nature rather than a human invention.