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« Preliminary Injunction in Myriad v. Ambry and Gene-by Gene: Myriad Replies | Main | Webinar on Obviousness Standard After AIA »

October 10, 2013


Is the pleading that cease and desist letters have been sent to third parties and that third parties have been sued sufficient to create the necessary controversy to establish standing these days?

"and that (for no apparent reason) the case be declared exceptional"

That is an amazingly bald assertion.

It's very simple really. Counsyl is likely going to add BRCA 1 and 2 to their existing carrier screen panel. They can do this at virtually no additional cost the company. Unlike Myriad, Gene by Gene, Quest, and Ambry, Counsyl is the first true genomics company, with an extremely strong software engineering team (a lot of Stanford/ex-Google guys), who know how to utilize automation and robotics to build a proper genomics lab.

If Counsyl enters the BRAC space, Ambry and Gene by Gene will quickly leave (just like they did with carrier screening), and Myriad will likely be wiped out inside of 18 months. This lawsuit has Myriad more worried than any other suit they face. If Counsyl goes after them and wins, look out. Their stock will drop like a rock and their BRAC testing business will be finished.

Counsyl is now the largest clinical genome center in the world and many people in Silicon Valley view them as the Google of Genomics.

Except, Aaron, that Myriad can predict more thoroughly and accurately due to their database of proprietary mutations. So I wouldn't count Myriad out yet.

And remember, Myriad has been planning for the day when their patents expire, and they appreciate that the technology has gotten much better.

Which is of course how it is supposed to work.

Thanks for the comment

"Myriad can predict more thoroughly and accurately due to their database of proprietary mutations."

How do you know this is true and, even if it is true, what makes you think it will remain true for long?

"Myriad has been planning for the day when their patents expire, and they appreciate that the technology has gotten much better. Which is of course how it is supposed to work."

How "what" is supposed to work? Myriad built their company on invalid patents and asserting those invalid patents in obnoxious aggressive ways. They continue to engage in this behavior. Why do you insist on cheerleading for them?

"These counts are nothing more than the bare recitation of the patent numbers and the claims for each Count, and that Counsyl either does not infringe these claims or they are invalid for failing to meet at least one of the statutory requirements for patentability."

Sounds like "nothing more" than all the information that you find in a typical cease and desist letter or even a complaint, and then some.

Dear Paul:

My comments on the counts in the complaint were not meant to indicate any facial or other deficiency, just to explain to the reader why we weren't setting forth which claims in which patents were asserted by Counsyl to be invalid. We can't assume readers will actually read the complaint, so it is reasonable that they might wonder why we were not more comprehensive in discussing Counsyl's allegations. The statements you quoted answer that question.

My prediction about the continued viability of Myriad's business model is that they have performed several million tests on the BRCA gene, and that these tests include genological information that permit Myriad to understand the disease significance of variants that are otherwise "variants of unknown significance." Now, eventually a competitor may get the same or equivalent information but the accumulation of that information may be inhibited by Myriad's continued existence as a market leader due to its database-dependent superiority in identifying patients with disease-specific mutations.

What is troubling is that the cost aspect - which is a creature of how healthcare is allocated in the US - may result in people with "better" insurance getting the Myriad test, and others (Medicare/Medicaid or other less than premium insurance) will get the competitors' inferior tests. The consequence: poor people will get the inferior test and more will get sick and die. Not the optimum outcome.

As what "it" is can be illustrated by the Quest declaratory judgment complaint, which alleges that its tests do not infringe because they don't use any of the technology Myriad recites in its specific testing claims. So even if Myriad has a valid claim among the 214 remaining claims (which are remaining because the ACLU didn't challenge any of them) it doesn't matter is improvements in technology make Quest's fests non-infringing. Sounds like progress is getting promoted to me.

Thanks for the comment.

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