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« Alice Corp. v. CLS Bank Int'l: CLS Bank's Supreme Court Brief | Main | USPTO to Permit Delay in Meeting Certain Prioritized Examination Requirements »

March 11, 2014

Comments

Is it legal error to have the judge over-reach as to what must be shared? Does not the patent itself resolve the Quid Pro Quo? Why then does any private database created AFTER the grant of the patent figure into what the judge calls a distortion of the public disclosure exchange?

Choosing a commercial path - or not - AFTER a patent grant has nothing to do with the traditional understanding of Quid Pro Quo. There is evidence of distortion here, but whether the distortion is the one the judge identifies, well, I am...

Kevin,

What I see here in this preliminary injunction decision doesn't bode well for Myriad. With all due respect, I question Myriad's strategy in requesting the preliminary injunction for, as you point out, they invited this early negative view of their case.

Interesting that public opinion seems to be much more important these days, as with the Chimerix trial just approved this week by the FDA.

I tend to think that had Myriad's behaviors not been so despicable, we wouldn’t have been stuck with the current mess in 101. If you read the stories leading up to the discovery of BRCA1/2, you have highly respected scientists (e.g., Mary King (credited as discoverer of BRCA1), Michael Stratton (credited as discoverer of BRCA2), Sir John Sulston (Nobel Prize winner)) all saying that the discovery of BRCA1/2 was the collective efforts from an international consortium, and Myriad basically took advantage of the consortium and other scientists in the field, and then started to send “stop it or I will sue you” letters even to universities! I think there was a strong feel of injustice in the NY district court litigation if Myriad could keep enforcing the patents. ACLU picked the perfect bad guy. Myriad’s behaviors left you with nearly no sympathy. (Of course, there is no law that says bad guy cannot get or enforce a patent).
So now, we got stuck with bad case law in 101. Heard rumors from USPTO internal guidelines that Examiners should reject purified proteins or polypeptide under 101, unless applicants can prove otherwise. Good job, Myriad, for being so greedy and got all of us in trouble!

TT, there aren't many unbiased accounts of the discovery of the BRCA genes, or of Myriad's subsequent marketplace behavior. If Myriad can be faulted, at a minimum it's because they allowed hostile attitudes to arise and persist. However, the letters "to universities" you mention were not sent to researchers, but to academic labs that offered infringing diagnostic testing services for cold hard cash. It's just not a simple black and white story. As far as being stuck with bad 101 law, we can thank Myriad and the Federal courts for botching the case, but the biggest hat tip goes to the ACLU first and foremost. They could have challenged these claims on noninfringement, written description or other grounds that would equally have allowed courts to rule in their favor. But instead, the ACLU carefully avoided any theory that would have applied only to these particular patents or to their particular plaintiffs. They deliberately drove a strategy that was calculated to have the broadest possible impact on the largest possible number of patents. If, per the new guidelines, inventors can now no longer get patents on antibiotics or polypeptides or fermentation products or petroleum derivatives - well, we must assume that's just perfectly fine with both the ACLU and the Supreme Court.

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