Posts Tagged ‘biotechnology law’

Superman Breyer v. Batman Lourie Battle in the Sequenom Petition for Cert.

Sunday, March 27th, 2016

iStock_000087208111_SmallSince this is an amplification of my last post on the Sequenom petition for cert. in Sequenom v. Ariosa, please go back at read my first post on the petition. I have been arguing for some years that the patent world will never be at rest where diagnostic claims are concerned until the patent eligibility of a simple “If A, then B” claim is addressed by the Fed. Cir. and/or the Supreme Court.

This is the type of claim criticized by Justices Breyer, Souter and Stevens in the “Metabolite Labs dissent” of 2006, when the Court declined to decide the patent-eligibility of a method of detecting a deficiency of cobalamin or folate by assaying a body fluid for an elevated level of homocysteine and correlating the elevated level with a cobalamin or homocysteine deficiency.” Justice Breyer just called the claim a law of nature with a mental step.

Fast forward to 2012 and the Mayo decision (132 S.Ct. 1289), and the Supreme Court invalidated an awkwardly drafted claim that I will re-write here as a method of medical treatment claim:

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Sequenom Files Petition for Cert. After Invalidation of Cff Patent

Tuesday, March 22nd, 2016

supreme-courtSequenom, the loser in “Ariosa,” has filed a petition seeking Supreme Court review of the Fed. Cir.’s invalidation of the claims of US Pat. No. 6,258,540 as an attempt to claim a natural product, cffDNA. While there is no dispute among the commentators that this decision was flat-out wrong, the majority of the panel seemed to agree that it was compelled by the “Mayo/Alice Rule” (after they spotted the natural product, cffDNA, and ignored the other claim steps as conventional). (A copy of the Petition can be found at the end of this post.)

As previously noted by me, this is not a great case to settle the issue of whether or not claims based on biomarkers are patent-eligible. All of the claims on appeal, except for claim 21, are simply directed to methods for detecting cffDNA in a maternal serum or plasma sample. These claims are as patentable as a method of testing transgenic potatoes for the level of the precursor to acrylamide – a carcinogen that you do not want in your chips. The claim is a method claim, even if the precursor enzyme is a natural product. Even the ACLU in Myriad argued that, while a new method of mining gold would be patentable subject matter, a gold nugget is not.

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President Obama Nominates Merrick Garland to fill Scalia Vacancy

Wednesday, March 16th, 2016

Merrick-Garland-Article-201411121517_1458137133709_1030713_ver1.0Yesterday, President Obama nominated Judge Merrick Garland, Chief Judge of the D.C. Cir., to fill the seat vacated by the recent death of Justice Scalia. Merrick is a graduate of Harvard and Harvard Law School, and clerked for Justice Brennan. He majored in Social Studies at Harvard and was Articles Editor at the Harvard Law Review.

Although I scanned various articles looking for some tech background to provide another view to the anti-life science patent proponents on the current court, such as Justices Breyer and Thomas, I couldn’t find much. Wiki notes that Garland has ‘favored contested EPA regulations and actions when changed by industry, and in other cases he has accepted challenges brought by environmental groups.” So at least he doesn’t believe the earth is flat or that the Creator is warming us up for the second coming.

Of course, Republican Senators who have spoken out have no interest in even holding hearings on this distinguished jurist, who was appointed to the D.C. Cir. by President Clinton. At that time, Republicans opposed his appointment on the laughable basis that the court did not need a 12th judge and that his appointment would be a waste of Federal funds. I guess that the obstructionist opponents would rather wait to see who the Donald hires for the job.

Ohio Willow Wood’s Appeal of IC Finding Goes Up In Smoke

Tuesday, February 23rd, 2016

iStock_000062460636_SmallOn February 19th, the Fed. Cir. affirmed a District Court’s finding of inequitable conduct in Ohio Willow Wood Co. (OWW) v. Alps South (Alps), LLC, following the Fed. Cir.’s remand of summary judgment of no inequitable conduct in 2013. (Ohio Willow Wood Cr. v. Alps South LLC, 2015 U.S. App LEXIS 2864 (Fed. Cir. 2016).) (A copy is available at the end of this post.)

The facts of the case are complex, and involve two reexaminations of U.S. Pat. No. 5,830,237, claiming a cushioning device for amputees, “SSGL.”

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