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Jan 1, 2012 (Vol. 32, No. 1)

Is the USPTO Playing the Race Card?

The Inclusion of Race Elements in Personalize Medicine Patents Ignites Debate

  • Relevant Patents

    Finally, it appears to be the case, as the USPTO suggests, that the total number of relevant patents is quite low especially compared to the number of issued patents relating to personalized medicine and diagnostics in general. In addition, even among relevant patents discussed here (notwithstanding Kahn’s discussion of U.S. Pat. No. 6,716,518), it is possible that applicants insert race language on their own, without any prompting by the USPTO, much less via an examiner “forcing” them to do so.

    In his Nature article, Kahn concludes that “[t]he truly chilling aspect of this story are the questions it raises as to how many other applicants have given in to examiner’s demands that they include race in their patents?” Likewise, the Washington Post article concludes with Kahn’s statement that “[t]here’s no telling how many people will just give in and use race in a way that the scientists clearly do not think is an appropriate way to use race.”

    If the USPTO had a policy to require personalized medicine patent claims to specify race, I might share these concerns, but the few patents identified in my searches do not suggest a widespread practice. It is a fact of patent practice that examiners often ask applicants to make their patent claims more narrow, and it is up to applicants to stand their ground when suggested amendments do not make sense scientifically or legally.

    If an examiner tries to play a race card, the applicant should call his bluff, and perhaps offer to include more scientifically relevant claim language to address the examiner’s concerns.

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