April 2011

Looking Ahead

On April 4, 2011, the Federal Circuit heard oral argument in Association for Molecular Pathology v. U.S. Patent & Trademark Office, No. 10-1426, which addresses a district court’s determination that “isolated DNA” lacks patent eligibility under 35 U.S.C. § 101.  In 2009, several plaintiffs filed a lawsuit claiming that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid.  The district court, inter alia, concluded that the patents at issue, directed to isolated DNA containing sequences found in nature, are unpatentable subject matter.  One of the defendants, Myriad Genetics (“Myriad”), appealed, challenging the district court’s jurisdiction and its decision.  In addition to raising arguments in favor of patent eligibility, Myriad argued that the plaintiffs lacked standing to file a DJ suit.  A decision is expected in the summer of 2011.