Fact Check: The Patent Eligibility Restoration Act Does Not Allow Patenting of Naturally-Occurring Genes

Claim: The American Civil Liberties Union (ACLU) published a statement announcing that it would oppose the recently reintroduced Patent Eligibility Restoration Act (PERA) on the grounds that “If passed, the Act would allow corporations and other entities to patent laws of nature and products of nature, including naturally-occurring genes.”

Correction: The Patent Eligibility Restoration Act explicitly does not allow for the patenting of naturally-occurring genes, a fact that co-author Senator Thom Tillis (R-NC) noted in his press release and that is also clearly evident in the text of the bill. Section 101(b) of the bill reads as follows:

“(1) IN GENERAL.—Subject to paragraph (2), a person may not obtain a patent for any of the following, if claimed as such:

“(A) A mathematical formula that is not part of a claimed invention in a category described in subsection (a).
“(B)(i) Subject to clause (ii), a process that is substantially economic, financial, business, social, cultural, or artistic, even though not less than 1 step in the process refers to a machine or manufacture.
“(ii) The process described in clause (i) shall not be excluded from eligibility for a patent if the process cannot practically be performed without the use of a machine or manufacture.
“(C) A process that—
“(i) is a mental process performed solely in the human mind; or
“(ii) occurs in nature wholly independent of, and prior to, any human activity.
“(D) An unmodified human gene, as that gene exists in the human body.
“(E) An unmodified natural material, as that material exists in nature.

PERA would allow the patenting of gene sequences that have been “isolated, purified, enriched, or otherwise altered by human activity” — in other words, genes that don’t occur naturally and only exist as a product of human invention. Allowing such inventions to be patented is crucial for incentivizing future innovation in the field of genetic research, just as it is in every field where humans create new technologies that do not exist on their own in nature. But the ACLU’s argument that “naturally-occurring genes” would be subject to patents is demonstrably untrue.

Bottom Line: This claim is false.

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