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Category: Patentable Subject Matter
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Is DNA patent-ineligible because it is like software? By Kevin E. Noonan — Recently, in CyberSource Corp. v. Retail Decisions, Inc., a panel of the Federal Circuit invalidated claims to software directing the performance of a process for preventing fraud in Internet purchases. While this type of decision is generally not germane to the topics…
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By Kevin E. Noonan — Judge Giles Sutherland Rich famously said that, in patent law, "the name of the game is the claim." One of the weaknesses in the "gene patenting" debate, as well as in the District Court's opinion in AMP v. USPTO (the Myriad case), is the lack of clarity about the scope…
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By Donald Zuhn — In an article published in The Huffington Post on Sunday, Wake Forest University Law Professor Simone Rose accuses the Federal Circuit of failing in its duty as "keeper of the Constitution" with respect to the Court's July 29 decision in Association for Molecular Pathology v. U.S. Patent and Trademark Office. Noting…
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By Kevin E. Noonan — One of the many questions in the Association for Molecular Pathology v. U.S. Patent and Trademark Office (Myriad) case decided by the panel was whether the plaintiffs had standing to bring a declaratory judgment action in the first place. This is a fundamental question: "Article III of the Constitution limits…
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By Kevin E. Noonan — Judge Bryson, the third member of the panel deciding the Association for Molecular Pathology v. U.S. Patent and Trademark Office (the Myriad) case, wrote an opinion concurring-in-part and dissenting-in-part. Judge Bryson concurred in the Court's judgment on all issues except the patent-eligibility of isolated DNA molecules including genomic DNA and…
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By Kevin E. Noonan — In the Federal Circuit's decision in Association for Molecular Pathology v. U.S. Patent and Trademark Office (the Myriad case), Judge Kimberly Moore wrote a separate opinion in which she concurred with the opinion of the panel affirming the District Court's judgment on the standing issues and the method claims, and…
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By Kevin E. Noonan — The Federal Circuit rendered a fractured decision on Friday in Association for Molecular Pathology v. U.S. Patent and Trademark Office (the Myriad case), with a majority opinion by Judge Lourie, a concurring opinion by Judge Moore joining in certain parts of the "majority" opinion and in other parts concurring with…
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By Kevin E. Noonan — On the very day that the Federal Circuit rendered its decision in Association for Molecular Pathology v. U.S. Patent and Trademark Office (the Myriad case), Plaintiffs sent a letter to the Court responding to an allegation regarding the standing issue in the case. As discussed yesterday, Defendants' (Myriad's) counsel sent a letter to the Court contending that…
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By Kevin E. Noonan — The Federal Circuit handed down its long-anticipated decision in Association for Molecular Pathology v. U.S. Patent and Trademark Office (the Myriad case). In an extensive and thorough opinion by Judge Lourie (only appropriate in a case where the District Court's opinion reached 156 pages), the Court affirmed the District Court's decision…
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By Kevin E. Noonan — As anyone following the AMP v. USPTO (Myriad) case will appreciate, one of the the grounds for appeal by Defendant Myriad is that the plaintiffs do not have standing to bring the suit. Since the District Court declined to rule on the Constitutional issues (1st Amendment/freedom of speech and 14th…
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