Isolated Human Genes Still Patentable in the United States

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On remand from the Supreme Court, the United States Court of Appeals for the Federal Circuit released its second opinion in Assoc. Molecular Pathology (AMP) et al. v. Myriad Genetics. The Court was asked to reconsidered its prior decision on patent eligibility under 35 U.S.C. §101 in view of the recent Supreme Court's decision in Mayo v. Prometheus and thus, determine whether Myriad's patent claims were patent-ineligible products of nature.

The panel stuck to its previous decision and concluded once again that isolated BRCA 1/2 DNA molecules patented and used by Myriad Genetics Inc. for diagnosing increased risks of breast and ovarian cancer are patent eligible, that claims on methods of using DNA transformed cells to screen for cancer therapeutics are also eligible but that diagnostic claims directed to "analyzing" and "comparing" DNA sequences are ineligible.

The article provides details about the reasoning behind the Court’s decision and it provides advices to maximise chances of patentability for diagnostic-related method claims.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Serge Lapointe | Attorney Advertising

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