Patent law allows organizations to patent individual products and ideas, allowing them to document their rights to control and own the patented material or solution. There are five requirements for a patent-pending product (QG, 2020). First, such a product must be patentable, which means it cannot be an artistic creation, a mathematical model, or a theory. Second, it must be new and not a copy of existing inventions. Third, the product must be inventive and not apparent to a qualified person. Fourth, the innovation must be helpful, and fifth, the product must not have been used before filing for a patent. It is also known that neither laws of nature, nor natural phenomena, nor products of natural origin are patentable. Based on this, it is clear that Myriad could not have patented the isolated human genes because it is not a product of intellectual activity but is a product of natural origin (Cartwright-Smith, 2014). Another explanation could be that life is not sufficiently inventive and, therefore, not patentable. In other words, companies cannot patent life, whether they obtain hybrid forms, GMOs, or cloning. This includes no matter what kind of life form it is, whether it is a plant, cells, genes, animal, or hybrid. However, it is worth saying that the modification procedures and techniques themselves can be (and are) patented, as it reflects the results of intellectual activity, and is characterized by ingenuity and non-obviousness. Current U.S. legal ethics prohibit any patenting of life as such, but not of ways to obtain that life (Goldman, 2018). For example, Dolly the sheep as a life form has not been patented, but the method of transferring a somatic cell nucleus to obtain that sheep has been patented. Hence, this is the boundary of the legal field: while life under U.S. law cannot become products of the invention, any method of obtaining that life or creating an artificial copy of it, as in the case of Myriad, can be patentable.
References
Cartwright-Smith, L. (2014). Patenting genes: What does Association for Molecular Pathology v. Myriad Genetics mean for genetic testing and research? Public Health Reports, 129(3), 289-292.
Goldman, E. (2018). The true story about life story rights. UpCouncel. Web.
QG. (2020). What are the 5 requirements for obtaining a patent? Business QLD Government. Web.