Comments on: Pigs Fly: Federal Court Invalidates Myriad’s Patent Claims

By: loveavtoua

loveavtoua — Fri, 10 Sep 2010 00:34:13 +0000

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By: Dr. Shyamala Pillai Shah

Dr. Shyamala Pillai Shah — Mon, 12 Apr 2010 06:17:10 +0000

Superb article. Thank you once again for the lucid explanation of points of law (not an easy task). I cannot reiterate enough the importance of the judgment and the contribution of your article towards shaping our IPR laws in a more humane and just manner.

By: David R Bachinsky

David R Bachinsky — Fri, 02 Apr 2010 11:40:35 +0000

Thomas Kepler and colleagues at Duke have an interesting paper on BRCA1 claims in genomics.
http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6WG1-4YK2F2W-1&_user=10&_coverDate=03%2F10%2F2010&_alid=1278817083&_rdoc=1&_fmt=high&_orig=search&_cdi=6809&_sort=r&_docanchor=&view=c&_ct=1&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=168bdc49d93947be822620d8f5b414a8

By: Mark S

Mark S — Thu, 01 Apr 2010 19:24:44 +0000

Thanks for the commentary. I have read the complete judgment and I think it does a great job of summarizing the issues and laying the groundwork for further argument at higher judicial levels.

Quick query, can the next higher court simply uphold the decision by refusing to allow an appeal, and if so would that be absolutely the end of this round?

I did not quite follow the judge’s argument about vitamin B12. He seemed to be saying that in that particular case purified B12 from one source was substantially different than impure B12 from a different source and hence patentable. I’m unfamiliar with the case in question, but from reading this judgment I have the sense that the B12 patent should have been revoked and the judge was doing a bit of dodging to avoid saying so.

Hypothetical: If I have my genome sequenced by Complete Genomics or Illumina at my own expense, and look at the raw data myself in the BRCA genes, does that infringe on the Myriad patents either on my part or the sequencing company’s? What if the company analyzes those genes for me (which they supposedly are prepared to do in a commercial setting)? Does it matter whether they know anything about my risk of cancer? If this infringes, then does that not make complete genome sequencing completely indefensible for all patented genes, which is clearly an absurd and impossible situation? And would not Complete and Illumina already be in infringement since their whole genomes are already commercially available?

(Disclaimer: I have profited from Myriad shares in the past, though have no current stake in the company).

By: Robert Chase

Robert Chase — Thu, 01 Apr 2010 03:37:37 +0000

In the name of “entrepreneurship” courts have been sympathetic to the wild constructions of the “intellectual property lawyers” Ever since subsequent rulings overturned the initial SCOTUS decision denying the validity of the method of “shift register” which actually was an attempt at patenting a mathematical equation and the subsequent forays into trivial programing patents, I have been amazed at the length the patent industry has gone to try to claim credit for what “God created” (Substitute nature if you want) My thinking in my first law school patent law class was if these guys get away with it eventually it will lead to the patenting of such things as the “binomial theorem” and other mathematical facts of nature. Not sure this is not what happened with DNA patenting. I actually welcome this decision as a refreshing return to reality.

By: Greg C.

Greg C. — Wed, 31 Mar 2010 21:53:17 +0000

Myriad is a victim of the practice of the patent attorneys to construct as broad claims as possible. This practice, degenerated to the point of encroaching into non-patentable areas, has the unintended effect of weakening the soundness of the claims, and thus actually weakens the IP protection. It is time for patent attorneys to understand this, and the decision in Myriad’s case should serve as a wake up call.

By: Biotunes

Biotunes — Wed, 31 Mar 2010 20:27:39 +0000

This ruling is in the best interests of science and those who wish to advance it for humanity’s benefit. What’s breathtaking is the fact that companies ever were allowed to patent DNA in the first place. It never made sense that patent law on ‘created’ organisms was applied to DNA that existed millenia before someone decided to look closely at it.

http://bioblog.biotunes.org/bioblog/2010/03/30/a-good-day-for-science-and-medicine/

http://bioblog.biotunes.org/bioblog/2009/11/15/myriad-genetics-did-not-create-the-brca-gene-evolution-did/

By: crelboyne

crelboyne — Wed, 31 Mar 2010 19:18:34 +0000

Fortunately Judge Sweet’s analysis only has “intuitive” appeal, if any. Deeper reflection shows it to be fatally flawed and the CAFC will reverse him in toto.

By: Bruce Amiata

Bruce Amiata — Wed, 31 Mar 2010 18:33:36 +0000

Oh, yes, I remember that now. Thank you.

By: Dan Vorhaus

Dan Vorhaus — Wed, 31 Mar 2010 17:37:32 +0000

Bruce -

The Federal Circuit is different from other geographically-focused Federal appellate courts in that its decisions within the bounds of its subject-matter jurisdiction (which includes patents) are binding throughout the U.S. Thus, a Federal Circuit opinion in Myriad would be binding unless the Supreme Court or Congress decided to weigh in.