In Genetic Veterinary Sciences, Inc. v. Laboklin GMBH & Co., the University of Berlin, App. No. 2018-1565 (Fed. Cir., Aug. 9, 2019), a Fed. Cir. panel affirmed the district court’s JMOL ruling that the claims of the University’s U.S. Pat. No. 9,157,114 were patent-ineligible because they merely involved the discovery of a natural phenomenon. Interestingly, the Judges on the panel were Wallach, Hughes and Stoll, all of whom dissented from the refusal of the Fed. Cir. to rehear the Athena decision en banc. However, Athena was a straightforward “If A, then B” diagnostic test, while the claims of the ‘114 patent were not written as diagnostic claims, but as “method of genotyping” claims:
- An in vivo method for genotyping a Labrador Retriever comprising: a) obtaining a biological sample from the Labrador Retriever, b) genotyping a SUV39H2 gene encoding the polypeptide of SEQ ID NO:1[;] and c) detecting the presence of a replacement of a nucleotide T with a nucleotide G at position 972 of SEQ ID NO:2.