On March 4, the USPTO issued the Guidance For Determining Subject Matter Eligibility Of Claims Involving Or Reciting Laws of Nature, Natural Phenomena & Natural Products, which offer some indications on what can and cannot be protected by patent with regards to natural products, after the controversial decisions of the Supreme Court of the United States in the cases Molecular Pathology vs. Myriad Genetics Inc. and Mayo Collaborative Services vs. Prometheus Laboratories. At the moment they have caused a big stir for its restrictive interpretation of what is patentable.

See Memorandum of the Commissioner for Patents of US.

According to these guidelines, non-modified natural products cannot be protected by patent, that is, the exception is not limited to natural nucleic acids, but also natural purified products such as antibiotics, natural bacterial strains, non-modified natural proteins, etc would be excluded from patent protection.

If this restrictive interpretation of the Myriad decision is confirmed, the possibility of patent protection of certain inventions in the US would be greatly diminished, creating a big difference with the criteria currently being followed in Europe.
In this situation, there is no doubt that lawsuits in the US will continue with regards to the patentability of natural products. The next court decisions will have to define the limits of what can be protected by patent in the United States.

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