biotech : CAFC Alert

Fractured CAFC panel again affirms patent eligibility of isolated DNA, and applies Mayo

Ryan Chirnomas | August 21, 2012

Association for Molecular Pathology et al. v. U.S.P.T.O. et al.

August 16, 2012

Panel:  Lourie, Bryson and Moore.  Majority opinion by Lourie, concurrence by Moore, dissent by Bryson.

Less than a month after hearing oral arguments, the CAFC panel of Judges Lourie, Bryson and Moore last week issued an updated decision in the controversial AMP v. USPTO (Myriad genetics) case. The CAFC reached the same conclusion as they did last year: (1) the Plaintiffs do have standing, (2) the isolated DNA and cDNA claims are patent eligible, (3) the “analyzing” and “comparing” method claims are not patent eligible and (4) the screening method claim is patent eligible.

As with the decision last year, the panel reached a unanimous conclusion with respect to the issues of standing, subject matter eligibility of the cDNA claims, and subject matter eligibility of the method claims.  However, the panel reached different conclusions with respect to the composition claims which recite isolated DNA.  Since the opinions of the Court are very similar to the opinions issued in 2011, this article will focus on the Judges’ views with respect to the impact of Mayo v. Prometheus (English summary; Japanese summary) on the claims in question, and particularly with respect to the isolated DNA claims.


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CAFC reiterates patent eligibility of isolated DNA in the Myriad case

Ryan Chirnomas | August 16, 2012

Less than a month after hearing oral arguments, the CAFC panel has issued a decision in the controversial AMP v. USPTO (Myriad genetics case). The CAFC reached the same conclusion as they did last year: (1) the Plaintiffs do have standing, (2) the isolated DNA and cDNA claims are patent eligible, (3) the “analyzing” and “comparing” method claims are not patent eligible and (4) the screening method claim is patent eligible.

We will provide further analysis of the decision in the coming days, including the panel’s reasoning why the Mayo holding is limited to method claims, and does not affect composition claims.  Readers should be aware that this is likely not the last word on this case…An en banc rehearing and/or another petition to the Supreme Court are very likely.

The full opinion can be read here:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-1406.pdf

Summary of Oral Arguments in AMP v. USPTO remand

Ryan Chirnomas | July 20, 2012

July 20, 2012

In the immortal words of baseball great Yogi Berra, “It’s déjà vu all over again”.  A little more than a year after they previously heard AMP v. USPTO, the CAFC panel of Judges Lourie, Bryson and Moore have once again taken up the question of whether isolated DNA and related methods are patent eligible subject matter under 35 U.S.C. §101.


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Another per se rule bites the dust. A reference that discloses a range encompassing a somewhat narrower claimed range may not be sufficient to establish a prima facie case of obviousness

Lee Wright | April 12, 2012

Genetics Institute, LLC v. Novartis Vaccines and Diagnostics, Inc.

August 23, 2011

Panel:  Lourie, Plager and Dyk.  Opinion by Lourie.  Concurrence-in-part and dissent-in part by Dyk.

Summary:

This article concludes a three-part series regarding this important case from last year.   For part 1, click here.  For part 2, click here.  This final article discusses the following questions:

Question 1:  Does a broad range necessarily render obvious a narrower range falling within that broader range?

Answer 1:  No.

Question 2:  Do all minor chemical differences always lead to a conclusion of obviousness?

Answer 2:  No.


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MAYO v. PROMETHEUS 米国最高裁判決

Yoshiya Nakamura | March 23, 2012

No. 10–1150. Argued December 7, 2011—Decided March 20, 2012

For an English discussion of Mayo v. Prometheus, please click here.

背景

Prometheus Laboratories(以下、Prometheus)は、自己免疫疾患を治療するためのチオプリン(thiopurine)ドラッグに関する2つの特許(U.S. Patent No. 6,355,623、No.6,680,302)の独占的使用権を有する。特許クレームは、チオプリンが投与された患者の血中の代謝物量を測定し、それに合わて投与量を調整する方法に関するものである。


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Supreme Court strikes down diagnostic method claims as non-patent-eligible subject matter

Ryan Chirnomas | March 20, 2012

Mayo Collaborative Services v. Prometheus Laboratories

March 20, 2012

Supreme Court, 9-0, opinion by Justice Breyer

Summary

Although we typically cover the CAFC in this blog, today we will be visiting the Supreme Court.  The Supreme Court unanimously ruled that the diagnostic method claims in this highly-anticipated case were invalid as failing to comply with 35 U.S.C. §101.  In short, the Court ruled that a claim reciting a diagnostic method (which is inherently based upon a law of nature) that applies only conventional, known steps is invalid.


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