Bracketing the BRCA Appeal
Fate of Myriad gene patent ruling will hinge on case law used by appeals courts
Drug and diagnostic companies have been operating for decades under the principle that genes are eligible for patenting as long as they have been isolated and purified. That premise was turned on its head last week by a district court summary judgment that held Myriad Genetics Inc.'s BRCA gene patents invalid. The ultimate disposition of the case now will likely rest on whether appeals courts apply Supreme Court case law on natural products, or on case law created by the Court of Appeals for the Federal Circuit when it examined other gene patents.
Robert Sweet, district court judge for the Southern District of New York, ruled in his summary judgment that 15 claims in seven Myriad patents covering composition of matter of and methods for analyzing the breast cancer 1 early onset (BRCA1) and BRCA2 genes were invalid...