Gene Patent Fight Continues

The ACLU filed another cert. petition where it asks the Supreme Court to overturn the Federal Circuit’s opinion that isolated human genes are patentable.  The questions presented in the petition include:

1. Are human genes patentable?

2. Did the court of appeals err in upholding a method claim by Myriad that is irreconcilable with this Court’s ruling in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012)?

3. 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 threatened with an infringement action?

The 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 despite not really have a single person or entity that does have standing.  Why continue to raise the question that it won but shouldn’t have?

The second question is new to this petition.  The Supreme Court issued a GVR order on this case in light of its Prometheus opinion and asked the Federal Circuit to reconsider the issues in light of Prometheus.  The Federal Circuit did so, but reached the same conclusion that the claims to isolated genes are patentable, claims to methods of screening cancer patients are patentable, and claims to methods of comparing and analyzing gene sequences to be ineligible.

We now await Myriad’s response.  The consensus seems to be that the Supreme Court will take this case again.  After Prometheus, it is completely unknown what the Court will do.

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