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.