From Volume 79, Number 1 (November 2005)
Twenty-five years ago, federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. Since that time, decisions across five disparate doctrines reflect confusion over the question of whether the definition of a biotechnology invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology.
This Article argues that in uncertain arts such as biotechnology, the definition of an invention should be limited to the state of the art at the time of the invention. Granting rights beyond knowledge at the time of the invention projects an enormous shadow across the future and creates untenable results. The temptation to restrain that reach has led to strange doctrinal twists and an unworkable body of law. After twenty-five years of experience, it is time to rethink our view of the proper shape of rights in this realm.