Should We Award Mr. Sugano a Valid Patent? Rethinking the Federal Circuit’s Rigid Written Description Requirement in Gene Patents

Whether a separate written description exists in 35 U.S.C. § 112 of the United States Code has been the subject of much debate. In Ariad v. Eli Lilly, the Federal Circuit attempted to settle the issue. An en banc panel consisting of eleven judges decided the case; and the court also received twenty-five amicus briefs. The arguments encompassed statutory interpretation, legal precedence, and policy concerns. The nine-judge majority favored a separate written description requirement, while Judge Rader and Judge Linn strongly opposed the majority decision. Whether the holding in Ariad is “correct” is beyond the scope of this note. Instead, this note focuses on whether the Federal Circuit has correctly applied this separate written description requirement to gene patent cases.