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Cancer Discovery quotes Konstantin Linnik in “Many Patent Prosecutions Remain After Supreme Court Ruling”

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06.27.2013

Konstantin Linnik, a partner in the Intellectual Property Department and a member of the firm’s Life Sciences practice group, was quoted in “Many Patent Prosecutions Remain After Supreme Court Ruling” in Cancer Discovery on June 27. The article discusses the heavily anticipated decision on Association for Molecular Pathology v. Myriad Genetics, in which the U.S. Supreme Court unanimously ruled on June 13 that isolated DNA is a product of nature and therefore cannot be patented. The court upheld Myriad’s cDNA patent claims related to the BRCA1 and BRCA2 genes, reasoning that cDNA is not a product of nature.

Konstantin comments that following the Myriad ruling, patent protection for genetic tests that assess heritable risk or aid in disease diagnosis and treatment will be based on narrower claims about DNA that has been altered by human intervention. “If you don’t’ have the ability to go after a single, big patent, then you need a collection of smaller patents that cover both the composition and method of the invention,” Linnik said. Konstantin explains that “composition of matter” claims cover how DNA has been altered by humans and “method” claims cover processes involved in achieving a specific result, such as treating a disease with a specific drug. “The claims have to be very specific,” he emphasized.

Konstantin also notes that legal opinions on the decision vary widely and it may take 5 to 10 years for the implications for personalized medicine to be fully realized. “New cases with different fact patterns will go through the court system, and eventually we'll have a better understanding of how the Myriad decision can be applied,” he said.

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