The Supreme Court seemed, at least to a small degree, interested in evaluating the subject matter eligibility of diagnostic claims when it requested that the respondents (Natera Inc. and Eurofins Viracor Inc.) respond to a petition for writ of certiorari filed by CareDx Inc. and the Board of Trustees of the Leland Stanford Junior University (collectively “CareDx”). CareDx had asked the Court to address the following question:

Congress has provided that any “new and useful process” is eligible for patent protection, and that “any new and useful improvement thereof” is also eligible for patent protection. 35 U.S.C. 101. The question presented is whether a new and useful method for measuring a natural phenomenon, that improves upon prior methods for measuring that very same phenomenon, is eligible for patent protection under Section 101.

But the Court denied CareDx’s petition, continuing its trend of refusing to reevaluate subject matter eligibility in the life sciences space and beyond. From the Order List issued by the Court on Oct. 2, we at least know that Justice Brett Kavanaugh would have granted the petition. Once again, we wait for another case to be brought to the Court or for Congress to act.

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