Cert. Petition in Gene Patent Case

As expected, the ACLU filed a petition asking the Supreme Court to review the Myriad case.  The petitioners raise two questions in their brief.

1. Are human genes patentable?

2. Did the court of appeals err in adopting a new and inflexible rule, contrary to normal standing rules and this Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), that petitioners who have been indisputably deterred by Myriad’s “active enforcement” of its patent rights nonetheless lack standing to challenge those patents absent evidence that they have been personally and directly threatened with an infringement action?

The strange things about the petition are that the first question is the ACLU’s attempt to get cute about the case. 

The second is that the petitioners won on the second question when they probably shouldn’t have.  The only plaintiff to have standing saw lost his standing while the case was on appeal.  The Supreme Court should probably dismiss the case as moot.

We now await Myriad’s response before seeing whether the Supreme Court will wade into this case.

A copy of the petition is available here.

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4 Responses to “Cert. Petition in Gene Patent Case”

  1. Pharma & Biotech Global Week in Review 14 Dec 2011 from IP Think Tank Says:

    [...] Plaintiffs file petition for certiorari in AMP v. USPTO (Patent Docs) (Inventive Step) [...]

  2. Supreme Court Continues to Confuse Patentable Subject Matter with Patentability « INVENTIVE STEP Says:

    [...] has been speculated that the Supreme Court was holding the petition for review in the Myriad gene patent case until it released this opinion in Prometheus.  Perhaps the Court will GVR [...]

  3. Reaction to Prometheus « INVENTIVE STEP Says:

    [...] Supreme Court decision in Mayo v. Prometheus, the Supreme Court issued a GVR order in the Myriad gene patent case.  The Court Granted the petition for certiorari, Vacated the Federal Circuit opinion, and Remanded [...]

  4. Gene Patent Fight Continues « INVENTIVE STEP Says:

    [...] first and third questions are the same ones that it presented in its December 2011 petition to the Supreme Court.  Question 3 is difficult to understand because the plaintiffs continue to win on this question [...]

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