Recently in Consumer Watchdog v. Wisconsin Alumni Research Foundation, No. 2013-1377 (Fed. Cir. 2014), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) dismissed Appellant Consumer Watchdog’s appeal on the ground that as a party, it lacked Article III standing. While the court’s decision raises interesting issues regarding litigation strategy, dismissal of the appeal leaves unanswered the substantive issue of whether a claimed in vitro culture of human embryonic stem cells is patent-eligible under 35 U.S.C. § 101. A review of the issue would have provided the court an opportunity to apply the U.S. Supreme Court’s Myriad jurisprudence to a claimed product of nature and much needed judicial insight into the U.S. Patent and Trademark Office’s (USPTO) recent Section 101 Guidance (for a review of the Guidance and its application to stem cells, see my prior posts dated March 5, 2014; March 7, 2014; March 20, 2014 and April 27, 2014). Continue reading this entry
The U.S. Supreme Court reversed the U.S. Court of Appeal for the Federal Circuit holding that a defendant may not be liable for inducing infringement of a patent under 35 U.S.C. § 271(b) when no one has directly infringed the patent under 35 U.S.C. § 271(a) or any other statutory provision. Limelight Networks, Inc. v. Akamai Technologies, Inc., 572 U.S. __ (2014). The decision limits the ability of patent holders to protect technologies that are increasingly relevant in today’s economy. We are in an era of specialization and collaboration. Digital technology moves information among users. Patient samples may be taken in the home or in a physician’s office, analyzed and in a laboratory and transmitted to a treating physician who prescribes therapy. Thus, in many instances, more than one individual or entity can be involved in providing a digital service or medical method. Today’s decision dictates that these method patents are only enforceable if one party practices all steps of the method. Continue reading this entry
Personalized medicine relies on diagnostic medicine to identify the best therapy for the patient at the right time. Tests that match a therapy to the patient fall into one of two categories. In vitro diagnostic devices or IVDs are diagnostic tests developed and manufactured by device manufacturers. In the United States, IVDs are regulated by the U.S. Food and Drug Administration (FDA). IVDs that direct treatment decisions are considered by the FDA to be high risk and therefore require pre-market approval.
Diagnostic tests developed by a commercial laboratory, termed laboratory developed tests or LDTs are subject to oversight under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) administered by the Centers for Medicare & Medicaid Services (CMS). Continue reading this entry
Next generation sequencing (NGS) promises to transform the delivery of health care by providing in one test diagnostic and prognostic information that had previously only been available in multiple analyses. One application of the information obtained from NGS is as a companion diagnostic for a therapeutic. A significant reduction in the overall cost to sequence the complete genome, most notably Illumina’s announcement of the “$1,000 genome,” makes NGS an attractive alternative to current locus-by-locus genetic analysis, and raises the prospect of near-term adoption of NGS in clinical medicine. This post will review some current opinions on NGS and whether the technology is ready for use in diagnostic and therapeutic development. Continue reading this entry
The U.S. Court of Appeals for the Federal Circuit, relying on U.S. Supreme Court patent-eligibility precedent, held that a claim to a live-born clone of a pre-existing, non-embryonic, donor mammal is not patent-eligible. The Court reasoned that because the clone is genetically identical to its donor parent, it is not markedly different from that found in nature and therefore not eligible for patent protection. See In re Roslin Institute (Edinburgh), Slip Op. No. 2013-1407 (Fed. Cir. May 8, 2014).
A Sheep Named Dolly
In the mid-1990′s, Campbell and Wilmut, two scientists from The Roslin Institute of Edinburgh, Scotland (Roslin) were the first to successfully clone a mammal from an adult somatic cell – Dolly the Sheep. The method, called somatic cell transfer, requires removing the nucleus of a somatic cell and implanting that nucleus into an oocyte from which the nucleus has been removed. To create Dolly, the nucleus of an adult, somatic mammary cell was fused with an enucleated oocyte. The resulting fused oocyte develops into an embryo which can then be implanted into a surrogate mammal, where it develops into a fetus. The resulting mammal is an exact genetic replica of the adult mammal from which the somatic cell nucleus was taken. Continue reading this entry