Last week, the ACLU of Utah Foundation, Inc., PUBPAT, and others submitted an amici curiae brief in two infringement actions brought by Myriad Genetics, Inc. and collaborators against Ambry Genetics Corp. and Gene by Gene, Ltd.The amici brief was submitted in support of Ambry Genetics and Gene by Gene, which have opposed Myriad's motion for a preliminary injunction to prevent them from offering genetic testing services based on the BRCA1 and 2 genes.
In laying out their argument, amici contend that "despite the unanimous rulings [by the Supreme Court] in Mayo and AMP, Myriad continues to aggressively defend its monopoly on examining the BRCA genes, pointing to patent claims that were not the subject of the previous suit but are clearly invalid under those decisions and the Federal Circuit's earlier ruling." According to amici, the claims being asserted by Myriad are "clearly invalid" because they only add "routine, data-gathering steps such as 'amplifying' and 'sequencing'."
Amici also argue that the granting of a preliminary injunction would violate the First Amendment and Patent Clause of the U.S. Constitution by conferring upon Myriad exclusive control over a body of knowledge. In particular, the brief contends that Myriad has used its exclusive rights "to amass an enormous amount of information critical to the health of every American," and that Myriad "refuses to allow others to obtain the information themselves by performing the basic methods at issue in this litigation, or to share the information with the medical and scientific communities."
Amici further argue that a preliminary injunction would harm the public interest because "an injunction would allow Myriad to continue to impede our acquisition of greater knowledge about the BRCA1 and BRCA2 genes." The brief concludes by suggesting that the District Court's decision on the preliminary injunction motions will "impact whether or not patients and their physicians and genetic counselors have the option of seeking testing from the numerous laboratories that are fully capable and willing to provide clinical testing of these genes and whether scientists can freely engage in research without fear of liability." See full discussion in Patent Docs blog.
This legal action seems like it will never end and probably won't for a while.
Posted by Bruce Lehr Aug 30th 2013