(Or, and then there was one)
By Kevin E. Noonan --
As discussed at the end of January, Myriad has given up its Quixotic quest to validate its BRCA gene testing franchise and has abandoned its several lawsuits (many of which were consolidated before the District of Utah under 28 U.S.C. § 1407 and captioned In Re: BRCA1- and BRCA2-Based Hereditary Cancer Test Patent Litigation; see "Panel on Multidistrict Litigation Consolidates Myriad Cases in Utah District Court"). With its agreement to dismiss actions (with prejudice) against Ambry Genetics, LabCorp, Invitae, and Pathway Genomics, the earlier settlement agreement reached with Gene-by-Gene (see "Gene-by-Gene Cries Uncle, Settles with Myriad Genetics"), and a separate settlement with Counsyl, the only actions remaining before the Utah court were against Quest and GenDx.
Until this week, when Quest and Myriad announced that this case has settled as well. The terms are the same in this settlement as in the earlier, more recent ones: Myriad's infringement allegations had been dismissed "with prejudice" and Quest has received a "covenant not to sue" by Myriad. The only financial considerations announced were that each party would bear its own costs of the litigation.
That leaves GeneDx, but that case is in a slightly different posture because GeneDx challenged Myriad's patents before the Patent Trial and Appeals Board under the inter partes review (IPR) provisions of the Leahy-Smith America Invents Act. Such IPR actions can be settled, but once instituted can also be pursued to their conclusions sua sponte by the Board. The patents at issue in that action are U.S. Patent Nos. 5,654,155; 5,753,441; 6,033,857; 6,051,379; 6,083,698; 6,951,721; 7,470,510; 7,563,571; 7,622,258; 7,670,776; and 7,838,237.