William & Mary Business Law Review


After the Supreme Court's decision in Ass'n for Molecular Pathology v. Myriad Genetic's, previously patentable materials may now be rejected as unpatentable subject matter, specifically because they cover natural products. This presents a problem for businesses performing adult stem cell research and development, because stem cells exist in nature but pluripotency in adult stem cells does not. The United States Patent and Trademark Office (USPTO) and federal courts must recognize that these stem cells are still patentable because there is human intervention that creates a product that could not exist in nature on its own. Neither the USPTO nor any federal courts have yet reached the substantive issue of whether stem cells are patentable post-Myriad.

By recognizing the patentability of adult stem cells, the USPTO and federal courts would allow research institutions to recoup their substantial investment into the critical adult stem cell field, while still respecting the standard of patentable subject matter dictated in Myriad. This Note argues for retaining patentability of adult stem cells in the face of certain future challenges to patentable subject matter, at both the examination and appeals stages.