Samantak Ghosh

The Taking of Human Biological Products

Despite the Supreme Court invalidating human gene patents in the recent past, thousands of patents on other human biological products can still arguably be enforced. Although such patents do not cover these products inside our body, the moment one isolates them from our body and extracts them, the patent holder has an exclusionary right to them. This raises complicated legal and ethical questions. Who owns the excised body parts? The person whose body they come from, or a third person who owns a patent on these materials? If a human being owns her excised body parts, does the State commit a taking by transferring property rights of these bodily materials to a third party through patents? While a number of scholars and courts have discussed whether patents are protected as “private property” under the Takings Clause, this paper argues that in some circumstances, patents themselves may constitute a taking. Patent law has traditionally considered patents on human biological products under a unitary doctrine covering all natural products. But this paper shows that patents on natural products isolated from the human body raise additional questions implicating the Takings Clause.