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PublishedNovember 30, 2012

Supreme Court Grants Cert in Myriad

Moments ago the United States Supreme Court granted certiorari in Assoc. for Molecular Pathology v. Myriad Genetics, Inc., et al.  (Supreme Court docket  12-398)

The Court limited its grant to Question 1 presented in the petition: “are human genes patentable?”

The Court did not grant certiorari as to Question 2 presented in the petition: “Did the court of appeals err in upholding a method claim by Myriad that is irreconcilable with this Court’s ruling in Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012)?”

While the issue of human gene patentability is controversial and likely to capture the public’s imagination, within the day-to-day patent world the scope and applicability of Mayo v. Prometheus is a far more important question.

The Supreme Court had previously remanded the Myriad case back to the Court of Appeals for the Federal Circuit for reconsideration in light of the Supreme Court’s ruling in Mayo.  Since certiorari was not granted with regard to the Mayo issues, we can presume that the Supreme Court was satisfied with the application of Mayo to the patents at issue in Myriad.  What we do not yet know, however, is how the Supreme Court will view the Federal Circuit’s application of Mayo to cases outside of the life science context, such as software.  For that we will have to wait for another case.  But given the Supreme Court’s now undeniable interest in patent law, it will likely avail itself of opportunities to explain the Mayo doctrine in other arts in the near future.

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Josh Lamel

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