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January 27, 2015


In view of Breyer's dissent in LabCorp, it's hard to know if some other shmendrick beside Myriad would have served as the straight man for this court's joke of patent jurisprudence, had Myriad not pressed its case (several GVRs in the wake of Myriad suggest that those cases might have been the vehicle for Breyer et al. to get their fix). But Myriad was the one that did so, using questionable tactics, ultimately leading to the current patent landscape that is much poorer for at least the biotech industry. "Are you happy now, Myriad?" is most definitely the question to be asked.

I agree that Myriad might have been better served by asserting narrower claims.

But hindsight is cheap. SCOTUS rewrote the law in a way that was unexpected by most commentators, radically reinterpreted cases, and waded directly into an area of policy that should be reserved for the political branches of government. How is that Myriad's fault?

I get that many are mad at Myriad for the changes to the patent law. But....

Based on my read of what is in the public record, Myriad never broke even on the diagnostic tests it endeavored to create. Other diagnostic companies wantonly ripped them off (where is the righteous indignation for "infringers" from the patent bar?!?).

As patent attorneys, the fact that a company cannot have exclusivity to at least break even should ring a note of discord. What does our future look like when companies look at a technology then steer away because the "juice isn't worth the squeeze?" Certainly we aren't writing more patents.

" SCOTUS rewrote the law in a way that was unexpected by most commentators,"

Meanwhile, other commenters recognized that Myriad's claims had severe flaws from the beginning (and not just subject matter eligibility problems). These flaws were identified in real time. Not everybody wanted to discuss the flaws but that doesnt mean those flaws disappear.

Live and learn.

Kap'n: Perhaps, but the petitioners bore the burden of invalidating Myriad, and won on the 101 issue.

My other surprise was that the SCOTUS accepted review. Scalia, in particular, had been a big force in reforming/changing standing doctrine, making it much harder to get review without actual injury. [But maybe that is only for environmental cases]

(One of) the problems exemplified by the good Kaptain's desire for judicially activist solutions - especially in regards to a statutory law regime such as patent law - is that as long as the results obtained are in accord with the person's desired philosophical ends, that the means to those ends are not given a second thought.

Woe then, when different results are obtained through identical "whatever" means...

Changes to the patent law, while bad for attorney business, were completely necessary. Myriad cloned a gene--by a process that was already known. Sure it was "hard work", but it wasn't an invention. They didn't even discover the correlation with hereditary cancer! How does that translate to a patent estate on the diagnostic and diagnostic interpretation. Is that too high an altitude for this pedantic discussion??

Well, Doug, that's where you are wrong. Changes in patent law are great for the attorney business - the more unpredictable things get the more clients need good lawyers to help them. As I've said to others who have accused me of taking the positions I have on these issues for personal gain, please don't worry about me - my retirement is secure and getting moreso everyday.

As I have posited before, there are countless situations where the argument could be made that "they didn't invent it" - antibiotics, lubricants from petroleum, all sorts of natural products made into drugs. Myriad "invented" a composition of matter comprising the BRCA genes isolated from the rest of tbe chromosomal DNA, just as Amgen did for EPO and Genentech did for tPA, etc.

And remember - we live in the world Myriad made. In 1997 precious few insurance companies believed that cancer could be predicted by a blood test, and few state Medicare/Medicaid programs believed, either. Myriad did the work of getting these folks on board, establishing that the test was reliable and would save money in the long run. And, oh yes, saving countless women the worry of whether they would get breast cancer and giving those at risk the information to make an informed decision. If Mary Clare King or any other academic had won the BRCA gene race and "dedicated it to the public,' do you think women in economically disadvantaged areas of the country (i.e., outside the scope of major academic medical centers) would have gotten the test? Myriad didn't do this out of altruism, but the profit motive in this case led to the happy outcome that more women got the test that otherwise would have, and faster too.

The irony is that, in a world where patent incentives don't exist, these types of tests will only be available when the big corporations develop them. Who would have predicted that a group like the ACLU would be working for the corporate man?

Thanks for the comment.

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