Life scientists and companies in Colorado planning to protect their rights to biotechnology have hit legal hurdles in recent years. A 2012 decision from the Supreme Court of the United States narrowed the ability to award patents for biotechnology, and courts have been striking down existing patents that intellectual property owners had once thought secure. Concerned parties, such as the American Intellectual Property Law Association, the American Bar Association’s Section of Intellectual Property Law and the Intellectual Property Owners Association have proposed revising a portion of U.S. patent law to spell out specific guidelines for determining which biotechnology deserves patent protection.
The Supreme Court established that abstract ideas, natural phenomena and laws of nature did not represent patentable concepts unless people had developed novel or useful applications for them. The 2012 decision created a two-part test for judging whether something qualified as patentable. Since then, federal courts have applied the test in very broad terms. The result has been the elimination of many patents, especially diagnostic biotechnology like a prenatal genetic test.
An assembly of biotechnology stakeholders at the Biotechnology Innovation Organization symposium expressed concerns about the power given to the courts to decide these matters. Although one intellectual property attorney said that he did not expect Congress to update the patent laws immediately, he believes that a clarified law would correct the problem.
Because intellectual property legal questions often depend on numerous details, people might need to consult an attorney when pursuing protection for a unique work of expression, an invention or trade secret. An attorney could evaluate the issue against the law to determine if it might qualify for protection.