Put another way, it is time for Jones Day to click their well-polished heels and go home. Today, the U.S. Government filed an amicus brief largely supporting the arguments by AMP/ACLU that isolated DNA is essentially the same molecule after isolation as it is in vivo – in other words that it is not a “new composition of matter.” The amicus brief (a copy is found at the end of this post) – that was not co-signed by the PTO – conceded that cDNA was changed sufficiently by the hand of man that it should remain patentable. This is the position that the Solicitor took when Myriad’s appeal was argued before the Federal Circuit, and is likely to carry substantial weight at the Court. The Court may well not draw any such distinction.

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