BIO and AUTM filed an amici curiae brief in the Myriad case (AMP v USPTO) as analyzed in the Patent Doc blog. The brief focuses on the patent-eligibility of isolated DNA. The brief also argues that negative consequences will ensue if the Federal Circuit does not reverse the lower court's ruling with regard to the BRCA1 and BRCA2 patents.
The brief states three grounds for the Court to decide that isolated DNA is patent eligible.
- First, that isolated DNA molecules are "man-made composition of matter" that are not naturally occurring
- Second, that the isolated DNA molecules are chemical compounds which have new and distinctive properties and uses as compared to naturally-occurring DNA
- Thirdly, the Court errored when it considered DNA as "mere information" rather than as a chemical compound
The brief addresses the confounding issue in this case, that being the failure of the US healthcare system and inequities in distribution [of diagnostic tests], with the limited exclusive rights granted by patents. If a different balance between strong patent rights and diagnostic test availabilty needs to be struck, it should be done by Congress and not the courts.
In its Statement of Interest, BIO asserts that represents "over 1100 companies. The "vast majority" of BIO members are "small companies that have yet to bring a product to market or attain profitability, and thus rely heavily on venture capital and other private investment." This has made "critical" patenting on isolated DNA molecules to attract such investment.
AUTM, according to the Statement, is "the largest association of university technology transfer professionals, with members from over 350 universities, research institutions, teaching hospitals, and government agencies worldwide. Its interests in the outcome of this case are self-evident: universities own overwhelmingly numbers of patents on isolated DNA.
Posted by Bruce Lehr November 12th 2010.
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