Today the USPTO issued guidance to Examiners on how to apply the Myriad Supreme Court decision to applications under examination. The guidance states that claims drawn “solely to naturally occurring nucleotide sequences or fragments” should be rejected for lack of eligibility under 35 U.S.C. 101. The guidance indicates that this is only a preliminary guidance memo, and that a more detailed guidance document will be issued to examiners in the future.
As noted in our earlier post, the Myriad decision has left plenty of room for nanotech patents, despite the finding that naturally occurring genes are unpatentable. The USPTO’s preliminary guidance appears in line with the decision and does not alter that general view.