Mandating race: how the USPTO is forcing race into biotech patents.

摘要

Biotech patents have increasingly included race-specific claims since the completion of the Human Genome Project in 2003. The question of how and why this phenomenon is occurring was first addressed in these pages in November 2006 (ref. 1). At that time there appeared to be two basic forces at work: first, some inventors were using race defensively, to buttress broader claims not specific to race; second, others were using race affirmatively to capture race-specific markets. A more recent review of select patent prosecutions before the United States Patent and Trademark Office (USPTO) indicates a third and potentially more troubling dynamic at work: USPTO examiners are requiring applicants to include racial categories in the claims sections of some of their biotech patent submissions. The use of race in the claims section of a patent is particularly important because this is the legally operative section of a patent that defines the “metes and bounds,” or territory, covered by the patent. The claims form the basis for subsequent research, development and marketing of products developed from the patent.