By Kevin E. Noonan --
As anyone following the AMP v. USPTO (Myriad) case will appreciate, one of the the grounds for appeal by Defendant Myriad is that the plaintiffs do not have standing to bring the suit. Since the District Court declined to rule on the Constitutional issues (1st Amendment/freedom of speech and 14th Amendment denial of due process claims with regard to the genetic information of the individual women plaintiffs), the standing issue comes down to whether any of the doctors and researchers named as plaintiffs are "ready, willing and able" to provide BRCA gene testing should Myriad's patents be invalidated. This question arose during oral argument on April 4th at the Federal Circuit, with Judge Moore joined by Judge Bryson particularly questioning Chris Hansen, the ACLU lawyer representing the plaintiffs, about the identity of at least one such named plaintiff (see "AMP v. USPTO: Oral Argument at the Federal Circuit"). Mr. Hansen provided one: Dr. Harry Ostrer from New York University, who alone among all the plaintiffs had evinced the "capability and desire" required for standing (at least according to Mr. Hansen), and that his institution, Langone Medical Center, had the "personnel, expertise and facilities" required for such testing.
That situation has changed. It seems that Dr. Ostrer is moving from his position at NYU and will be affiliated with the Department of Genetics at the Albert Einstein Medical Center in the Bronx, effective in August 2011. While academic scientists change institutions with some regularity, this change in location has prompted Defendants, through their counsel Greg Castanias, to write to the Federal Circuit to inform the Court of a change of circumstance that accompanies Dr. Ostrer's move. In their letter, Mr. Castanias informs the Court that the Genetics Department at Albert Einstein "does not offer, and is not qualified to offer, clinical genetic testing," including inter alia BRCA testing.
The significance of this change in circumstance is that the standing issue is not one that is decided once and then becomes the law of the case; as stated in Mr. Castanias' letter, plaintiffs had the burden to establish declaratory judgment jurisdiction, and this requirement continues from the time the complaint is filed through the appeals process. At least one plaintiff must have a "personal stake in the outcome" in order for jurisdiction to be maintained he writes, citing Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990).
The result is that even if Dr. Ostrer could provide the plaintiffs with standing to sue heretofore, he cannot do so now, according to Defendant's letter. Without specifically petitioning for the outcome, the letter should certainly raise even more questions for the panel (Judges Lourie, Bryson, and Moore) as they continue considering their opinion in this case.
Hat tip to Hal Wegner who alerted Patent Docs to Myriad's letter.