One of the few patent prosecution-related provisions of the America Invents Act (AIA) that took immediate effect is the ban on patenting human organisms, set forth in Section 33(a) of the AIA:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
According to a memorandum issued to the Patent Examining Corps on September 20, 2011, this provision of the AIA “does not change existing law or long-standing USPTO policy that a claim encompassing a human being is not patentable.” Indeed, MPEP § 2105 already provides:
If the broadest reasonable interpretation of the claimed invention as a whole encompasses a human being, then a rejection under 35 USC 101 must be made indicating that the claimed invention is directed to nonstatutory subject matter.
When the AIA first was enacted, there was some question whether this section might be interpreted more broadly, such as banning patents on isolated human stem cells or isolated human DNA. This memorandum makes clear that at least the USPTO is not reading the statute as departing from the status quo.
