Non-Invasive Prenatal Testing and the Resilience of the Patent System

Patent protection is a key feature of the non-invasive prenatal testing (NIPT) landscape. In the jostle for market supremacy, commercial players live and die by the validity and scope of their patents. This chapter explores the key aspects of cases relating to the question of whether NIPT patent claims satisfy the requirement for patentable subject matter in the US, the UK and Australia, jurisdictions where this question has been most actively litigated. The chapter argues that the more recent NIPT case law illustrates the resilience of patent law in the face of new technological challenges. It is further argued that, although changes should be made to patent law to make it more adaptable in the face of new technological challenges, it would be best in the future to avoid dramatic shifts in the interpretation of core patent criteria.