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Federal Circuit Finds an Absence of Utility in DNA Sequences, ESTs: Encumbrance of Patentability Holds Ramifications for Agricultural Industry

By Jeffrey S. Ginsberg and Merri C. Moken

On Sept. 7, 2005, the Federal Circuit issued a hard-hitting decision for mavens of the agricultural sciences. The ruling touches on the patentability of a large portion of naturally occurring, protein encoding nucleotide sequences, referred to as “expressed sequence tags” or “ESTs.”

In In Re Fisher, No. 04-1465, 2005 WL 2139421 (Fed. Cir., Sep 07, 2005), the Federal Circuit affirmed a decision of the Board of Patent Appeals and Interferences (the “Board”) holding that absent evidence to support any claimed uses, ESTs lack the specific and substantial utility required by 35 U.S.C. '101 to render them patentable; and therefore under '112, do not enable one of ordinary skill in the art to use them.

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