Thursday, August 16, 2012

Federal Circuit Reaffirms Patentability of Isolated Gene Sequences, But Not Methods for "Comparing" or Analyzing" Them

Last July the Federal Circuit issued an opinion the Myriad case involving the patentablity of genes directed to detection of breast cancer and related methods for using them, which I blogged about here.  
In March 2012, the U.S. Supreme Court issued an opinion in Mayo v. Prometheus, which I also blogged aboutMayo limited the patentablity of medical diagnostic processes.  Following that decision, the Supreme Court ordered the Federal Circuit to reconsider its decision in view of Mayo's reasoning.
Today the Federal Circuit issued a new opinion in Myriad.  To summarize 106 pages very briefly, there was no change in the outcome from last year's original opinion.  Isolated DNA remains patentable subject matter, as do some of the method claims.  However, some of the method claims (method claims directed to comparing or analyz-ing gene sequences) are unpatentable.  Judge Bryson again dissented on the isolated DNA claims.  
Expect a cert petition or two.

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