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BioPharm Insight quotes Konstantin Linnik in “Myriad gene patent case may still see Supreme Court, ACLU seen as likely party to appeal”

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08.22.2012

Konstantin Linnik, a member of the firm’s Intellectual Property and Life Sciences practice groups, was quoted by BioPharm Insight in “Myriad gene patent case may still see Supreme Court, ACLU seen as likely party to appeal” on August 22.

The article discusses the recent decision by the United States Court of Appeals for the Federal Circuit in Association for Molecular Pathology v. Myriad Genetics, which declared Myriad’s composition of matter claims covering isolated DNA of the BRCA 1 and BRCA 2 genes patent eligible material under Section 101 of the United States Patent Act. The decision reinstates the previous decision made by the Court on July 29, 2011.

Although a method claim directed to screening potential cancer therapeutics was also upheld, certain method claims directed to analyzing or comparing gene sequences were not found to be patent eligible subject matter under Section 101 in light of Mayo Collaborative Services v. Prometheus Laboratories. The Myriad case was remanded back to the Federal Circuit previously in light of the Supreme Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories.

The Myriad gene patent case may still be further reviewed en banc by the Federal Circuit or appealed to the Supreme Court. A spokesperson for Myriad said the company hasn’t made an official statement on appeal. Konstantin notes there is a ninety day window to appeal the Federal Circuit decision. “Still, the ACLU may be done with this case and not appeal," said Konstantin. “There is a concern a policy decision gets made that DNA and gene claims are not patent eligible which would clearly discourage innovation. The ACLU may decide this is not the right battle for them to fight, and they have already taken this case far enough," he said.

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