An analysis of federal circuit discrimination: the evolution of the written description requirement vis-a-vis DNA and biotechnological inventions concerns for synthetic biology.

Abstract

The Federal Circuit uses particular patent doctrines as policy levers to control the nature of the nation's patent output. To this end, the Court will actively discriminate in it's application of the Patent Act, depending on the nature of the technology before it. One example of such a lever is the written description doctrine. Most recently, the court has looked to this doctrine in an effort to limit the scope of biotechnology patents in general and DNA patents in particular. This paper provides a cursory review of this law regarding the enigmatic written description requirement, examining particularly its history and purposes. It then examines some of the recent cases that allude to the Federal Circuit's particular efforts in the biotechnology industry. Finally, it presents a potentially problematic technology for future implementation of discriminatory practices by the court.