The Supreme Court has again granted certiorari in the Myriad gene patent case. Specifically, the Court agreed to decide the following question presented:
Are human genes patentable?
The Court declined to address the method claims or the standing issue in the case.
The ACLU and other plaintiffs sued Myriad and the USPTO in 2009 claiming that Myriad’s patents to isolated genes are invalid as directed to non-statutory subject matter and in violation of the First Amendment to the Constitution. In early 2010, the district court agreed that the gene patent claims were invalid under § 101 of the Patent Act, but not under the First Amendment.
In 2011, the Federal Circuit reversed, holding that isolated DNA have a markedly different chemical identity and nature from DNA found in the human body. After the Supreme Court issued its decision in Prometheus where it confused obviousness with patentable subject matter, the Court sent the Myriad case back to the Federal Circuit for reconsideration in light of that decision. After reviewing the case again, the Federal Circuit reached the same conclusion that the isolated DNA claims are patentable.
The Supreme Court has now agreed to consider this case again. Given its propensity for confusing patentability with patentable subject matter, the outcome is completely uncertain.
The case will be briefed in the coming months and should be argued before the Court in March or April. A decision is expected by the end of the Court’s current term in June.