As anticipated, the Supreme Court has granted certiorari in Association for Molecular Pathology v. Myriad Genetics, et al. (the “Myriad” case) to review the Circuit Court’s opinion. The Court previously granted certiorari to vacate and remand the Federal Circuit’s Myriad decision for reconsideration in view of the Court’s 2012 decision in Mayo Collaborative Services, et al. v. Prometheus Laboratories, Inc. (“Mayo”). Notwithstanding Mayo, the Federal Circuit reached the same result on remand as its initial decision.
We previously posted on various developments underlying the “Myriad” case. Prior to the certiorari grant, the Federal Circuit had held that isolated DNA sequences from human BRCA 1 and BRCA 2 genes are patentable subject matter under 35 U. S. C. §101. Specifically, the Federal Circuit reasoned that DNA sequences in their isolated state “are not the same molecules as DNA as it exists in the body; human intervention in cleaving or synthesizing a portion of native chromosomal DNA imparts on that isolated DNA a distractive chemical identity from that possessed by native DNA.” This was enough for the Federal Circuit to find patentable subject matter.
Myriad is assured to be one of the most followed cases on the Court’s docket this year. Of particular interest will be the Court’s consideration and application of its Mayo decision to the issues it now faces in Myriad.
Gibbons will continue to track future developments in this case from party briefing — and the inevitable scores of amicus briefs likely to be filed — through oral argument and final decision.
Ralph A. Dengler is a Director in the Gibbons Intellectual Property Department.