Myriad Genetics Inc: patenting of isolated human DNA - a missed policy opportunity or judicial interpretation supporting a judicial minimalist status quo (Part 1)

This article argues the Myriad Genetics Inc decisions in the USA and Australia missed an opportunity to include social policy objectives into patentable subject matter. This it is argued arose from a judicial minimalist support of separate legal policy objectives of certainty, clarity and consistency in interpretation of law. These legal policies Buke and Lemley argue mean courts are themselves making economic and social policy decisions in through their determinations of the boundaries of patentable subject matter, even though they do not believe they are directly applying policy. The courts deference to parliament for policy implementation means judicial minimalism and the status quo concentration on economic policy overrides social policy objectives.