Bristol Myers Squibb Co., et al. v. Merck & Co., Inc., et al., C.A. No. 15-560 - GMS, March 17, 2016

Sleet, J. Defendants’ motion to dismiss the complaint on the grounds that it is patent ineligible is denied.

The patent-in-suit patent claims treatment for lung cancer by using antibodies.  Defendants claim that the patent-in-suit offers an administering step akin to the administering step found not to be patent eligible in Mayo. Plaintiff contends that method of treatment claim that merely relies on the human body's ability to respond to the disease. In addition, although the patent relies on the body's immune an additional step of administering a composition of anti-PD-1 antibodies to induce the immune response is added. Defendants contend that the process method consists of administering a synthetic agent through a single step to induce a natural reaction, while insists that administering anti-PD-1 antibodies is not a diagnostic step as in Mayo, but provides the treatment itself. After considering the factors set forth in Alice the court finds that whether the claims amount to an implementation step is a complicated factual determination that the court could better resolve after discovery. Motion to dismiss is denied.