Patentability Of Dna Sequences

Whether DNA is patentable is a worthy and controversial question. This article concentrates upon such a subject in accordance with the preconditions for patentability and the three fundamental conditions for patentability.The first part begins with a discussion of the science of biotechnology which is useful background for understanding its promises and perils, and with a clarify of the steps of judgement of patentability which is necessary for the discussion herein.The second part clarifies and analyzes the preconditions for patentability about DNA, especially in two issues: "public order or morality" and "invention or discovery". Yet, as discussed in the problem about public order and morality, the author discusses the three exitingtheories, and argues that the legal provision of public order and morality in the Patent Act is a bridge connecting the law and ethics or public policy, and provides the possibility for drawing the regulations of other acts and moral rules into the examination of the patentability. Because moral judgement can not, and should not be escapped, such provision must be preserved in patent law.The auther asserts to distinguish DNA of human being from DNA of other livings, and to adopt different patent policy.DNA of human being doesn't qualify to be the subject of a patent because of its tremendous ethics risk. But DNA of other livings is eligible for patent protection without sufficient evidence of harm to society.The author also analyzes the three viewpoints in the debate concerning whether DNA is invention or discovery, and reveals the cause with the method of economical analysis why discovery is not patentable, in opposition to the viewpoint that discovery is patentable. The author asserts that 1)We should insist that discovery is not eligible for patent protection because it will invoke so high deal cost and so high protection cost that it is unrealistic for discovery to be patented;2) DNA separated and cloned from organisms is not discovery but invention, and is patentable because the separated sequence is not the same as the natural exiting.The third part clarifies and analyzes the utility, novelty and nonobviousness of DNA. As discussed in utility, the author reviews the process of the evolvement of the requirment of utility in the United States and point out the trend to integrate the standard of utility to fullfill the demand of the biochemistry industry.The author also discusses three theories, such as "rent extravagance", "anticipation", and "the compare of risk" which all claim socall lower standard. The author objects to integrate the standard of utility with the patentability ofDNA, and argues that the patentee should explicate what protein this DNA sequence compiles, and what function this protein has.In the whole, the author insists the basic principles and conceptions which has been developed from normal patentable subject, and asserts to solute the patentability of DNA by explaining the patent law creatively. The author objects to integrate the standard of patentability with DNA. In this article, the economic analysis is used, and more attention is paid to the ethics problem involved in the patentability of DNA.