For those of you closely following Assn. Molec. Path. et al. v. USPTO et al., otherwise known as the Myriad “gene patenting” case, you already know that both sides petitioned the Federal Circuit for a rehearing by the three-judge panel (not en banc), albeit for different reasons. Specifically, on August 25, 2011, on behalf of Plaintiffs/Appellees, the ACLU filed a Petition for Panel Rehearing on the merits, while Myriad/Appellant filed its own Petition for Panel Rehearing on the standing issue four days later. Both parties filed petitions in response to the precedential decision by the Federal Circuit on July 29, 2011. The latest update is that yesterday, September 13, 2011, the Federal Circuit denied ACLU’s petition, although we still await word on Myriad’s petition.
In its petition, the ACLU primarily rehashed the merits of the case regarding patent eligibility of claims directed to “isolated DNA.” ACLU’s petition also argued, however, standing of at least two plaintiffs in the case, Dr. Ostrer and Dr. Matloff. By contrast, Myriad’s petition focused on the issue of whether any plaintiffs had standing needed to continue with the case. Myriad asserted that an employment change negated the standing of Dr. Ostrer, the only plaintiff found by the Federal Circuit to have standing in the case. Interestingly, Myriad also requested that the Federal Circuit dismiss the appeal as moot, but not vacate the July 29th opinions themselves. For a more detailed summary of the petitions, see our August 30 post.
In denying ACLU’s petition, the court signals that it has spoken with regard to gene patenting and will not visit the issue again, absent direction by the U.S. Supreme Court. The Federal Circuit has not yet denied Myriad’s petition, indicating at least the possibility that it may consider Myriad’s point that Dr. Ostrer no longer has standing, thereby rendering the case moot. No matter what happens, however, it is not likely that the court will unring its bell regarding the three opinions issued on July 29th. What remains to be seen, really, is what the Supreme Court will do with all of this.
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney.
This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary.
The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites.
In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.