AMP v. USPTO -- Briefing Update

By Donald Zuhn --

On October 22, Defendants-Appellants Myriad Genetics, Inc. and ten Directors of the University of Utah Research Foundation filed their brief in Association of Molecular Pathology v. U.S. Patent and Trademark Office (see "Myriad Files Appeal Brief in AMP v. USPTO").  Pursuant to Rule 29(e) of the Federal Rules of Appellate Procedure, amicus curiae briefs in support of Defendants-Appellants were due seven days later on October 29.  Patent Docs is aware of sixteen amicus briefs that were filed by the October 29 deadline:

• Alnylam Pharmaceuticals, Inc., in support of Defendants-Appellants, supporting reversal (brief)

• American Intellectual Property Law Association (AIPLA), in support of reversal, but in support of neither party (brief) -- see Patent Docs post

• Animal Health Institute (Patent Docs seeks copy of brief)

• Biotechnology Industry Organization (BIO) and the Association of University Technology Managers, supporting reversal (brief) -- see Patent Docs post

• Boston Patent Law Association, in support of Defendants-Appellants and reversal of summary judgment (brief)

• Genetic Alliance, supporting reversal, but not in support of either party (brief) -- see Patent Docs post

• Genomic Health Inc., Celera Corp., XDx Inc., Target Discovery Inc., the Coalition for 21st Century Medicine, and Burrill & Co., in support of Defendants-Appellants (brief)

• Gilead Sciences, Inc. and BioGenerator, in support of Defendants-Appellants and urging reversal (brief)

• Christopher M. Holman and Robert Cook-Deegan, in support of neither party (brief) -- see Patent Docs post

• Intellectual Property Owners Association (IPO), in support of neither party (brief) -- see Patent Docs post

• Kane Biotech, Inc., in support of Defendant-Appellant and reversal (brief)

• Merial Ltd. (Patent Docs seeks copy of brief)

• Novartis Corp., in support of Defendant-Appellant (brief)

• Rosetta Genomics, Ltd., Rosetta Genetics, Inc., and George Mason University, in support of Defendants-Appellants, supporting reversal (brief) -- see Patent Docs post

• United States, in support of neither party (brief) -- see Patent Docs post

• University of New Hampshire School of Law, in support of Appellants (brief) -- see Patent Docs post

Plaintiffs-Appellees filed their brief on November 30 (within 40 days after the filing of Defendants-Appellants' brief per Rule 31(a)(2) of the Federal Rules of Appellate Procedure).  Pursuant to Rule 29(e) of the Federal Rules of Appellate Procedure, amicus curiae briefs in support of Plaintiffs-Appellees (or in support of neither party) were due seven days later on December 7.  Patent Docs is aware of one amicus brief that was filed by the December 7 deadline:

• American Medical Association, American Society of Human Genetics, American College of Obstetricians and Gynecologists, American College of Embryology, and the Medical Society of the State of New York, in support of Plaintiffs-Appellees and arguing for affirmance (brief)

Patent Docs intends to provide summaries of all of the briefs filed in this appeal.  In addition, we are interested in securing copies of any amicus briefs that we may have missed.  Patent Docs thanks a number of its readers for kindly providing us with, or alerting us to, many of the amicus briefs listed above.

For additional information regarding this and other related topics, please see:

• "Amicus Briefs in AMP v. USPTO: University of New Hampshire School of Law," December 12, 2010
• "Amicus Briefs in AMP v. USPTO: Rosetta Genomics & George Mason University," December 8, 2010
• "Academic Amici Refute ACLU Falsehoods in Gene Patenting Debate," December 7, 2010
• "Amicus Briefs in AMP v. USPTO: Genetic Alliance," November 10, 2010
• "BIO and AUTM File Joint Amicus Brief in AMP v. USPTO," November 9, 2010
• "AIPLA Submits Amicus Brief in AMP v. USPTO," October 3, 2010
• "IPO Files Amicus Brief in AMP v. USPTO," November 2, 2010
• "AMP v. USPTO -- Briefing Update," November 1, 2010
• "DOJ Tries to Be All Things to All Constituencies in Myriad Amicus Brief," October 31, 2010
• "Myriad Files Appeal Brief in AMP v. USPTO," October 28, 2010
• "AMP v. USPTO -- Briefing Update," November 1, 2010
• "DOJ Tries to Be All Things to All Constituencies in Myriad Amicus Brief," October 31, 2010
• "Myriad Files Appeal Brief in AMP v. USPTO," October 28, 2010
• "AMP v. USPTO -- Briefing Schedule Update," August 22, 2010
• "Uh-oh: It Looks Like Judge Dyk Has Been Drinking the ACLU's Kool-Aid®," August 11, 2010
• "FCBA Submits Amicus Brief on Motion for Recusal in AMP v. USPTO," August 9, 2010
• "Appellees Move for Recusal of Chief Judge Rader in AMP v. USPTO Appeal," July 19, 2010
• "Facts, Perhaps the Antidote to the Anti-gene Patenting Plague," July 18, 2010
• "AMP v. USPTO after Bilski v. Kappos," July 6, 2010
• "Myriad Appeals AMP v. USPTO Decision," June 16, 2010
• "AMP v. USPTO: What Everyone Else Is Saying - Part II," June 8, 2010
• "AMP v. USPTO: What Everyone Else Is Saying," April 6, 2010
• "'60 Minutes' and 'Newshour' Take Different Apporaches to Covering Gene Patenting Story," April 5, 2010
• "AMP v. USPTO: What the Parties Are Saying About the Decision," April 1, 2010
• "Caught in a Time Warp: The (In)validity of BRCA1 Oligonucleotide Claims," March 30, 2010
• "Round One Goes to the ACLU," March 29, 2010
• "Debating Gene Patents - Round Four," February 10, 2010
• "Newsweek = Newspeak on Gene Patenting," February 8, 2010
• "Everybody Knows -- The Boston Globe Weighs in on Gene Patenting," February 1, 2010
• "The USPTO Asks out of Gene Patenting Case (Again)," January 19, 2010
• "Top Stories of 2009: #4 to #1," January 4, 2010
• "Gene Patenting: Australian Potpourri," December 28, 2009
• "Science Progress Article Examines Impact of Gene Patents on Research," December 21, 2009
• "Gene Patenting Debate Continues - Round Three," December 17, 2009
• "BRCA Patent Suit to Continue in Southern District of New York," November 2, 2009
• "Empirical Research Fails to Support Gene Patenting Ban," October 22, 2009
• "The Tragedy of a Bad Idea," August 25, 2009
• "Gene Patenting Debate Continues - Round Two," August 4, 2009
• "The Unwanted Consequences of Banning Gene Patenting," June 16, 2009
• "Falsehoods, Distortions and Outright Lies in the Gene Patenting Debate," June 15, 2009
• "Gene Patenting Debate Continues," June 9, 2009
• "Association for Molecular Pathology v. U.S. Patent and Trademark Office," May 17, 2009
• "Court Report: Special Edition," May 13, 2009

Comments

[David Koepsell]

did you see this one:
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B9_llJGo9WK0ODIzZjM3YzctNmFmYy00MzQzLWI4MGEtODc4YzAyNGM0NWEy&hl=en

[Bob Cook-Deegan]

E. Richard Gold (McGill Law) and Tania Bubela (U Alberta Sch Pub Hlth) filed an amicus on the Dec deadline. You can get it from Richard at [email protected]; and ACLU has posted the brief on its site:
http://www.aclu.org/free-speech-womens-rights/brca-amicus-brief-e-richard-gold-james-p-evans-and-tania-bubela

[Leah]

At least 12 amicus briefs have been filed in support of the plaintiffs-appellees:
http://www.aclu.org/free-speech-womens-rights/brca-case-documents

[6]

They should rename this case to be called "The People v. Big Business and Researchers"

[Kevin E. Noonan]

Thanks to all (except 6) for providing links to these briefs.

[Donald Zuhn]

David: Thanks for the link; the AMA et al. amici brief was listed in our post among those briefs filed after the October 29 deadline (in support of Defendants-Appellants) but before the December 7 deadline (in support of Plaintiffs-Appellees or in support of neither party).

Bob: Thanks for the link to the Gold et al. amici brief. We will add it to our next list.

Leah: Thanks for the link to additional amicus briefs. We will add these briefs to our list and try to get to most (if not all) of them.

[6]

These guys are against the March of Dimes.

You'd think that ordinary rational people would think 2x about doing something that even the March of Dimes comes out against.

Just think Kev, everytime you put a dime in one of those little things at 711 you're supporting the other side. That is, if you put dimes in there.

[6]

"Patents on gene sequences have contributed to patients’ deaths."

There's a pithy quote from the brief that Koepsell cited.

Remember, everytime you advocate for gene patents you are in fact advocating for death. It seems that, in a manner of speaking, it is simply a round about way of murdering people. I wonder if the PO could refuse a patent on the grounds that it could not issue the patent because doing otherwise would make them a party to murder? I mean, would the patent be "entitled to a patent under the LAW" if issuance thereof is in fact breaking the law?

I also wonder, would Kev have the gumption to speak his position to the face of a person who in fact is slated to die from his advocacy?

[6]

"During this period at least one patient, age 10, died from her undiagnosed Long QT syndrome; her death could have been prevented had testing been available."

Another pithy quote. How's that blood on your hands feel? How's that blood money feel in your pocket?

[Kevin E. Noonan]

Before you get yourself further into a lather, there, 6, first ask yourself: just because they say it, does it make it true? And, how much was any unavailability of a test to a particular patient due to an insurance conmpany not paying for it (no matter what the cost)? And what would be the cost in lost lives if the test wasn't available in the first place, not only now but after the patent expires?

I can sleep at night, don't worry about me.

[6]

" just because they say it, does it make it true?"

They provide citations, which I will trust since your industry's murderous intent seems readily apparent to all.

"And, how much was any unavailability of a test to a particular patient due to an insurance conmpany not paying for it (no matter what the cost)?"

I'm not particularly sure how this matters, [redacted]. But perhaps you have some murderous way of explaining how it should matter, in the slightest. If you're trying to blame being evil on another company being evil, I'm pretty sure the 2x wrongs not being equal to a right applies.

"And what would be the cost in lost lives if the test wasn't available in the first place, not only now but after the patent expires?"

Hypothetically speaking about the instant case? None? It seems that another group was about to make it available the subsequent week, or perhaps even before Myriad did, but after the patent was filed. [Redacted].

To be sure Kev, I'm hamming it up. But I'm only doing it to raise your blood pressure to give you a heart attack whereupon hopefully you'll appreciate the availability of medical diagnostics, i.e. doctors checking you out and making decisions, a little more. Or maybe you won't, because your doctor will pause to look up if his diagnostic test is infringing a patent and you'll die on the table :(

"I can sleep at night, don't worry about me."

Only until your subconcious catches up to you, muahahahahaha.

In all srsness though, have you ever spoken to a victim of your advocacy who subsequently died as a result thereof?

[6]

"“[P]atents were not needed to develop genetic tests for hearing loss, SCA [spinocerebellar atrophy], breast cancer, LQTS [long-QT syndrome], Canavan disease, and HH [hereditary hemochromatosis]. Indeed, all of these tests were on the market before the test offered by the relevant patent-rights holder.” Id. at 31."

Lookie lookie. I have no doubt that it would have been before Myriad put their test on the market in the BRCA case as well.

Patents: Slowing down your natural phenomena, law of nature, and abstract idea innovation implementation since 1952 (or before :) ).

[Kevin E. Noonan]

There's that lather we were talking about, 6.

Calling people murderers doesn't help rational debate, so I'll let that go. The fact is that many things are developed concurrently, with an ultimate patentee prevailing due to priority. So the fact that there were other tests (not patented because they were not first) doesn't matter.

We could decide that diagnostic medical methods are not patent-eligible. That's fine, although I think it would be a mistake. The problem is that the claims the ACLU and friends are attacking have very little to do with those tests, and indeed the methods can be practiced without infringing those claims. Before you dispute me, like you told me on another thread, YOU. KNOW. NOTHING. ABOUT. BIOTECH., so please just accept the the court could reverse, the Supreme Court decide on the diagnostic method issue per Bilski, and we would both be happy (although you more than me, because I think such a Supreme Court decision would be a mistake).

And the funny thing is, I am likely to make even more money under those circumstances, because protecting technology outside the patent system is less transparent and hence benefits from clever strategies we lawyers are known for. My retirement account thanks you.