Anticipating Patentable Subject Matter

By the summer of 2013, the United States Supreme Court should issue an opinion in Myriad v. AMP, a case dealing with the patentability of human genes, including cDNA molecules that are created in the laboratory. Opponents of gene patenting have argued that such molecules should be deemed unpatentable products of nature because, statistically, such molecules might sometimes be fortuitously created in human cells. But this argument improperly imports into patent law\u27s section 101 subject matter analysis the doctrine of inherency from section 102\u27s provisions on novelty. And, if inherency is to be imported into section 101, the proper standard for patentability would be the public benefit criteria that has been developed in section 102 consideration of inherency. Under the public benefit standard, Myriad\u27s cDNAs would constitute patentable subject matter