Standing in AMP v. USPTO: The Plot Thickens

By Kevin E. Noonan --

On the very day that the Federal Circuit rendered its decision in Association for Molecular Pathology v. U.S. Patent and Trademark Office (the Myriad case), Plaintiffs sent a letter to the Court responding to an allegation regarding the standing issue in the case.  As discussed yesterday, Defendants' (Myriad's) counsel sent a letter to the Court contending that Dr. Harry Ostrer, a named plaintiff, had recently left his position at NYU Legano Medical Center for a post at the Department of Genetics at Albert Einstein Medical Center.  This event was significant, according to Defendants' letter, because Dr. Ostrer purportedly would not be able to perform clinical genetic testing in his new position, and thus his willingness to perform BRCA testing would no longer support plaintiffs' standing for its declaratory judgment action.

Plaintiffs' letter contends that Defendants are in error and that Dr. Ostrer retains his capacity and willingness to perform BRCA genetic testing in his new position.

The significance of Dr. Ostrer's status is heightened by the Court's decision today, which affirmed the District Court's decision that plaintiffs have standing based solely on Dr. Ostrer's capacity and willingness to perform BRCA genetic testing.  While the issue would appear to be mooted by the Court's decision, insofar as a factual dispute exists, it may be addressed if either party petitions for rehearing en banc.

Comments

[Gary Johnston]

Kevin:

I suggest a new title for this blog entry: "Standing in AMP v. USPTO: The Plot Thickens, Although it Doesn't Matter Whether the Plot is Thick or Thin Because the Supreme Court is Going to Kill Biomarker Correlation Claims in Prometheus v. Mayo Anyway."

What do you think, too long?

[6]

Lulz lulz lulz lulz lulz.

[Dan Feigelson]

"While the issue [of standing] would appear to be mooted by the Court's decision, insofar as a factual dispute exists, it may be addressed if either party petitions for rehearing en banc."

Understatement of the year, Kevin. You know both sides ARE going to petition for rehearing and rehearing en banc, and that at least part of Myriad's brief is going to be devoted to the standing question. If the panel chooses to rehear and deny standing, the rest of what it said becomes irrelevant. And it lowers the chance that SCOTUS will take up the case.