Trilateral Project 24.1-Biotechnology 219

There have been no major changes in U.S. practice regarding chemical and biotechnological inventions since completion of the 1990 12.3 Report. A minor change occurred with the passage of 35 U.S.C. Sec. 103(b) with patents on biotechnological processes. Section 103(b) legislatively overturned In re Durden, 763 F.2d 1406, 226 USPQ 359 (Fed. Cir. 1985) with a narrow class of biotechnological process patents. The Federal Circuit's recent case, In re Ochiai, 71 F.3d 1565, 37 USPQ2d 1127 (Fed. Cir. 1995), also considerably weakened the applicability of Durden to process claims when the starting or ending product is novel and unobvious.

Plants and non-human animals per se are considered to be eligible subject matter for patent claims. According to our highest court, Congress intended patentable subject matter to include "anything under the sun that is made by man." Diamond V. Chakrabarty, 447 U.S. 303, 309 (1980). The wide breadth of patentable subject matter promotes broad range advancement in all of the useful arts. Examples of this broad perspective toward patentable subject matter is found in other technologies such as the software industry.