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Patent law, Originality, Gene patents, Patent clause, Copyright clause, 1952 Patent Act, 35 USC 101, Trade-Mark Case


Intellectual Property Law


Originality has always been a part of patent law. It bars patents that are obtained by copying from someone or from somewhere. Modern judicial interpretations of the patent act have ignored this second element of originality. But as originality is, at least arguably, a constitutional limit of the Patent and Copyright clause, the courts must interpret the patent act consistently to include originality. As a specific example, the paper focuses on patents claiming isolated and purified naturally-occurring gene sequences. The paper concludes that such patents are not original – they are instead just the result of copying – and thus they are invalid.


This article predates the author’s affiliation with Cornell Law School.

Publication Citation

Oskar Liivak, "The Forgotten Originality Requirement: A Constitutional Hurdle for Gene Patents", 87 Journal of the Patent and Trademark Office Society (2005)