Research On Patentability Of Human Gene Base On The Case Of Myriad

According to the nature of the patent system the function of gene patent is to promote the development of gene research and inspire the innovation of gene industry. But there has been controversy since the first human gene patent was authorized. The debate on the issue of human gene patent protection is increasingly fierce with the more and more human gene have been granted patent right. The focus of the debate is the patentability of human gene. Policy and legislation of human gene patentability is not the same among countries in the world. But the patentability of human gene has become an inevitable and important problem in the process of building national patent system.The case of Myriad was known as topped the list of ten biggest U.S. patent and trademark cases of2011. The arguments of the case focus on the patentability and conditions of the human gene. The case was unconstrained fluctuation by go through the first trial, second trial, the retrial, and then the final judgment by the U.S. Supreme Court. It had a profound impact in academia and provided inspirations for reviewing the patentability of human gene.This article is divided into four parts. The first part describes the case of Myriad then discuss the argument between the judges and then analyzes the conditions of the patentability of human gene mentioned in the case.The second part mainly introduces the basic knowledge of the human gene and the debate on the patentability of human gene. The third part discusses the negative and positive conditions of the patentability of human gene, the negative conditions mianly include public order and morality, the positive conditions are novelty, creativity and practicability. The last part summarizes the enlightenment that the case of Myriad gives, and then gives the author’s suggestions to human gene patent policy in our country.