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Unpublished Paper
Dicta on Adrenalin(e): Myriad Problems with Learned Hand's Product-of-Nature Pronouncements in Parke-Davis v. Mulford
ExpressO (2011)
  • Jon M. Harkness
Abstract

Gene patents of the type at issue in the Myriad case that is likely headed to the U.S. Supreme Court in the near future are based on an exception to the general principle that patents should not be allowed on products of nature. This exception holds that isolated or purified products of nature can be patented if they have commercial utility. It is widely recognized that this exception can be traced to language from an opinion issued by Judge Learned Hand in a 1911 case, Parke-Davis v. Mulford, which involved a patent dispute over a therapeutically useful version of the hormone adrenaline. This article is based on a detailed historical examination of this lawsuit and the patent application process that preceded the litigation. Hand’s now-famous pronouncements on the patentability of isolated products of nature are revealed as under-informed and highly problematic “dicta,” which should be accorded little-to-no weight as meaningful judicial precedent. This historical finding has significant implications for the current debate over the patentability of genes and other isolated or purified products of nature.

Keywords
  • Patent Law,
  • Patentable Subject Matter,
  • Myriad,
  • Gene Patents,
  • Products of Nature,
  • Learned Hand,
  • Jokichi Takamine
Disciplines
Publication Date
August 12, 2011
Citation Information
Jon M. Harkness. "Dicta on Adrenalin(e): Myriad Problems with Learned Hand's Product-of-Nature Pronouncements in Parke-Davis v. Mulford" ExpressO (2011)
Available at: http://works.bepress.com/jon_harkness/1/