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May 30, 2012

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I was hoping Myriad would raise the jurisdictional issue again on remand, so thanks for reporting this. The doctrines of standing and justiciability aren't just whimsy, they serve several important functions, and only a real plaintiff with a real stake in the matter should have been allowed to bring this case. I'd love to see this case tossed on jurisdictional grounds and a vacatur of the district court ruling, especially since such a result seems to be required by Supreme Court precedent and would likely keep SCOTUS from granting cert on the jurisdictional question.

Kevin,

It would frankly serve the ACLU and PubPat right for "fabricating" jurisdiction in this case (amongst other "fabrications" including their disingenuous assertions as to what the claimed "isolated" gene sequences cover) to then have this case ultimately dimissed on jurisdictional grounds.

How do they even know that Dr. Osterblahblah even "left" NYU? Did he burn all bridges and excommunicate himself from them? Just because he has a new employer doesn't mean jack.

Kev, why do you waste our time with these last gasps from Myriad?

"doctrines of standing and justiciability aren't just whimsy,"

In this case they're just whimsy.

"especially since such a result seems to be required by Supreme Court precedent and would likely keep SCOTUS from granting cert on the jurisdictional question."

Well then, why didn't the USSC just go ahead and toss the thing when it had it if it is just that simple?

Hello, 6.

They know that Dr. Ostrer left NYU because Montefiore and/or Dr. Ostrer announced it. These type of academic leavings are not uncommon and academics need to know where to find each other.

In fact, the argument is that changing employers is the point - Dr. Ostrer was not offered a license personally; NYU was for the reasons I included in the post. Since those reasons were the basis for the Federal Circuit to find standing for Dr. Ostrer, a change must be addressed. This is an issue of institutional competence: Federal courts do not have the power under the Constitution to grant advisory opinions. Just like the President needs Congress to authorize a declaration of war, and just like the Supreme Court can prevent Congress from passing (or, better, the President from enforcing) an unconstitutional statute, the Court is limited to "cases and controversies." And that requires the proper parties (if only because otherwise an interested party could get a court judgement contrary to the interests of an opponent as a tactic; courts can't be party to such nonsense).

As for why the Supreme Court didn't "kick it," first the Court didn't do much - simply sent it back to the Federal Circuit, with no decision on the merits or the procedural posture. So the Court's action is a nullity on this issue. In addition, remember the issue was not before the Court - the ACLU petitioned for cert and Myriad opposed. If the issue was to have come up earlier then the Federal Circuit should have granted rehearing.

Now, it is not a foregone conclusion that the Federal Circuit will agree with Myriad but it raises a question that the court can't ignore. And remember that the second part of the ACLU's cert petition was on the Federal Circuit's standing decision as to some of the other plaintiffs. Curiously they did not challenge the decision with regard to the women breast cancer patients; this suggests that those plaintiffs were cynically included to permit the ACLU to use them as the "face" of the problem merely for publicity and fundraising. Glad to see you are on board with that.

And you missed the best part of the brief - the fact that the ACLU and PubPat cherry-picked the challenged claims for maximum emotional response from the public and left many claims unchallenged that would prevent Dr. Ostrer or anyone else from providing BRCA testing even if all of the challenged patent claims went down. (I won't rehash why the gene claims are not infringed in performing the genetic diagnostic tests.)

Stay tuned - this will be interesting.

Thanks for the comment.

"the argument is that changing employers is the point - Dr. Ostrer was not offered a license personally; NYU was for the reasons I included in the post."

Which I understand, but has Dr. Ostrer decided that he shall no longer spend any time at NYU doing these tests? Did he announce that as well? He can come in on weekends and do what, iirc, he regards as charity work. It wasn't like he was doing this to make a buck.

"Now, it is not a foregone conclusion that the Federal Circuit will agree with Myriad but it raises a question that the court can't ignore. "

Unless they want to. Which I will not blame them one bit if they do.

"this suggests that those plaintiffs were cynically included to permit the ACLU to use them as the "face" of the problem merely for publicity and fundraising."

Or that they simply wanted to be a party to the lawlsuit, because they have a legitimate beef with Myriad, and are disincluded by you lawltard's nonsensical rules on standing. Or, perhaps like you say, maybe they were included for giggles. I like giggles.

"And you missed the best part of the brief - the fact that the ACLU and PubPat cherry-picked the challenged claims for maximum emotional response from the public and left many claims unchallenged that would prevent Dr. Ostrer or anyone else from providing BRCA testing even if all of the challenged patent claims went down."

So Myriad alleged. I was in the courtroom remember? I didn't notice you in the courtroom when that dribble spilled from their mouths. A more preposterous notion I scarce thought imaginable. Although, I will admit, I missed this entire brief because it hardly amuses me anymore to see our court system heing and hawing and passing the buck on making this decision that should have been made around the time of my BIRTH.

This case is little more than a sad commentary on the state of our government. And you just sit and revel in it.

6:

It is charmingly naive that you think Dr. Ostrer is doing testing for free.

I know you were in the courtroom, but the difference is that I know about this technology and you don't (I promise not to mindlessly opine, here or elsewhere, on computer or electronics-related technologies).

And you are supposed to be in law school. Are they really teaching you that you can participate in a lawsuit for giggles? Who's teaching you - Allie McBeal?

Thanks for the yuks.

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