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.