The human genome is already known – it means gene patents will already fail under § 102

A second potential hurdle—should the Supreme Court want to restore gene patentability—is that the entirety of the human genome has now been sequenced. Prior to this, researchers looking for genetic associations had to determine both which gene caused a disease and what the structure of that gene was. Now that the structure of all genes in the human body are known, researchers are no longer discovering new genetic structures.257 Thus, even if the Supreme Court had gone the other way in Myriad, it is hard to see how human genes could be patented at this point because their structure is already known, and patent law does not allow patents on known products.258 In Parke-Davis & Co. v. H.K. Mulford Co.,259 doctors already knew that tissue from the adrenal glands could have beneficial effects for certain medical conditions. Dr. Takamine discovered how to make a concentrated and purified substance from the glandular tissue, which had superior medical effects. In that case, Judge Learned Hand held that Takamine’s purified adrenaline was patentable because “it became for every practical purpose a new thing commercially and therapeutically.”260 The problem with applying this reasoning to isolated DNA sequences is that the DNA had already been isolated when it was sequenced. Thus, researchers who discover new genetic associations are discovering valuable genetic information, but they are not making any novel transformation of physical matter, because the genes have already been isolated outside of the body for sequencing. Because isolated and sequenced genes are not new, they are not patentable subject matter under § 102, even if someone discovers a useful association between gene and disease.261 Accordingly, even were the Supreme Court to overturn Myriad, it would have to also make an exception to § 102 in order for gene patents to again be patentable.