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Category: Patentable Subject Matter
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By Kevin E. Noonan — Last year, the Australian Senate rejected a call for banning patents on human genes in Australia. This result came after almost a decade of debate, resulting in several Reports (including the 2011 ACIP Report on Patentable Subject Matter, the Senate Gene Patents Report, issued November 24, 2010, and the 2004…
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By Kevin E. Noonan — The Federal Circuit today denied Defendant Myriad Genetics' motion, styled as "Appellant's Suggestion of Mootness, or, in the Alternative, Motion to Remand," seeking to reopen the question of whether Dr. Harry Ostrer continues to have standing to bring the lawsuit (see "Myriad Files Motion 'Suggesting' Mootness or Seeking Remand in…
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By Kevin E. Noonan — On May 30th, Myriad Genetics filed a motion in the remand of Association for Molecular Pathology v. U.S. Patent and Trademark Office case ("Myriad") to the Federal Circuit, styled "Appellant's Suggestion of Mootness, or, in the alternative, Motion to Remand," to address the fundamental question of whether the Federal Circuit,…
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By Kevin E. Noonan — One of the interesting and unresolved issues in the Association for Molecular Pathology v. U.S. Patent and Trademark Office case ("Myriad") involves whether the Federal Circuit, or any U.S. court, has jurisdiction to hear the case. This issue is based on the Federal Circuit's determination, in its now-vacated decision in…
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By Donald Zuhn — In an order issued by the Federal Circuit this morning in Association for Molecular Pathology v. U.S. Patent and Trademark Office ("Myriad"), the Court has requested that the parties file simultaneous supplemental briefs of not more than 20 pages by June 15, 2012 to address the following issue: What is the…
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(And If So, Would That Address Justice Breyer's Concerns in Mayo v. Prometheus)? By Kevin E. Noonan — Sometimes solutions to thorny issues are within our grasp if only we looked in the right place. The Supreme Court's recent decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. raises the specter of the Court throwing…
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By James DeGiulio — In an opinion issued only ten days after the Supreme Court's decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. ("Prometheus"), the District Court for the District of Columbia is believed to be the first to apply the Prometheus decision to invalidate diagnostic method patents. In finding the claims-at-issue in two patents…
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By Kevin E. Noonan — Perhaps unintentionally, the Supreme Court issued a challenge to America's patent attorneys in its Prometheus decision, warning against "interpreting patent statutes in ways that make patent eligibility 'depend simply on the draftsman's art.'" As purveyors of "the draftman's art," then it behooves us to ask whether claims perceived to be…
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This morning, as expected, the Supreme Court issued an Order granting the petition for writ of certiorari in Association for Molecular Pathology v. Myriad, vacating the judgment, and remanding the case back to the Federal Circuit for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories. For additional information regarding this and other…
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By Kevin E. Noonan — Biotech has met its Benson in the Court's Prometheus decision. Before considering what can be done, it is prudent to consider the implications of this decision (and the previous decade of Supreme Court decisions on patent law). It is now clear that the only patent law that matters is Supreme…
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