The Supreme Court today granted certiorari in Assoc. for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al. (Myriad), to address the issue of whether human genes are patentable. This will be the second time the Court considers Myriad, but the first in which it takes up the patent-eligibility of human genes. The first time around, the Court granted certiorari, reversed, and remanded (“GVR”) to the Federal Circuit with instructions that it revisit its ruling in light of the Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., ___U.S.___ (March 20, 2012) (see our client alert).
That remand resulted in the Federal Circuit’s wholesale re-affirmance of its prior ruling, now on review. Specifically, the Federal Circuit ruled that (1) isolated DNA molecules are patent-eligible, (2) Myriad’s method claims including only the steps of “analyzing” and “comparing” certain DNA sequences were not patent-eligible in light of Prometheus, and (3) Myriad’s method claim including the step of growing transformed cells in the presence or absence of a potential cancer therapeutic was sufficiently transformative to render the claim patent-eligible under § 101.
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