On Friday, the Federal Circuit (presumably) denied Defendants' petition for panel rehearing in Association for Molecular Pathology v. U.S. Patent and Trademark Office. Unlike the Court's earlier notice regarding denial of Plaintiffs'/Appellees' petition, this notice did not identify the party (but Defendants' petition was the only one pending). In their petition, counsel for Defendants asserted a single grounds for rehearing, of points of law and fact overlooked or misapprehended by the Court (see "Defendants File Petition for Panel Rehearing"). In particular, Defendants' petition asked the Court to review the standing issue based on their allegation that Dr. Harry Ostrer, the only plaintiff found to have standing, no longer has the capacity for "immediately begin[ning] to perform BRCA 1/2-related genetic testing" upon invalidation of the Myriad patents. It also asked the Court not to vacate the panel decision even if it found that Plaintiff Dr. Ostrer no longer had standing.
Either party could now ask the Court to rehear the case en banc, or could file petitions for certiorari with the Supreme Court. It is likely that the Court will decide the Prometheus Laboratories, Inc. v. Mayo Collaborative Services case before reaching the invalidated method claims in Myriad, but the Court could review the Federal Circuit panel's decision on the composition of matter claims this term.