Monday, November 1, 2010

U.S. Justice Dept. Disagrees with U.S. Patent Office on Patentability of Isolated Genes

The U.S. Justice Department has filed an amicus brief in a Federal Circuit appeal involving the patentablity of isolated genes, arguing that the U.S. Patent Office's policy permitting patents on such genes is incorrect.  The case involved a number of patents asserted by Myriad Genetics, Inc. covering gene sequences related to breast cancer detection and associated testing methods.  The ACLU led a group of plaintiffs that sued to invalidate Myriad's patents as unpatentable subject matter under 35 U.S.C. §101.  The district court agreed that the patents were invalid, and Myriad appealed to the Federal Circuit.  

Although the PTO was a named defendant in the case, the Justice Dept. filed an amicus brief asserting that the district court was correct, at least as to isolated genes that occur naturally in nature.  Techdirt's analysis of the case states that there "must have been a hell of a political fight within the administration to get this through."  The Patently-O blog and SCOTUSblog also analyze the brief and contain links to it.  

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