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October 24, 2013


This may also the case to challenge to the so-called "antibody exception" to the written description requirement.

Although I haven't analyzed the claimed sequence and I'm assuming that this was a previously unsequenced gene (prior to the filing of the application), claim 1 of the '925 patent would seem to fall snugly within the cDNA exception carved out by the Supreme Court in Myriad.

Absent some clear definition in the specification that provides some defined structure, claim 1 of the '421 patent is dead on arrival. Claims 2 and 3 seem more viable, although the challenge under 101 to "isolated" naturally occurring proteins is a real issue that the Supreme Court will surely need to address.

Claim 4 of the '421 patent also seems like a non-starter, given that some of the domains referred to are small and likely obvious in view of similiar domains (with similar functions) in many other previously described proteins.

I'm pretty sure that "public health" hasn't been harmed at all by the Myriad decision. But Myriad was harmed and they will certainly be harmed again. That's good for the patent system and everybody else (except Myriad and, I suppose, Myriad's cheerleaders).

Dear Bruce:

Unless the Court's Myriad decision expands to encompass antibiotics, antibodies, anticancer drugs, etc.

We'll see who are the cheerleaders then.

Thanks for the comment.

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