Patent Docs reports today that a genetic testing lab in California, known as Counsyl, Inc., has filed a declaratory judgment action -- asking the court to find that Myriad has no rights against Counsyl in conjunction with its 8 patents cited in the filing.
Counsyl is planning to launch a BRCA1 and BRCA2 testing service and expects to be pursued by Myriad just as Ambry and Gene-to-Gene have been. They are seeking to clear the decks in advance so as to avoid being sued. They make arguments that Myriad patents are invalid for prior art reasons, patent ineligible subject matter, Myriads' alleged negative impact on the public (by withholding its database), etc. Similar arguments as have been advanced by the other two companies.
No other arguments are advanced for why Myriad patents shouldn't apply to Counsyl, and for good measure they are also asking for attorney fees to be awarded. Sounds like they can't afford to be in court -- which is where they will likely end up if they proceed.
Posted by Bruce Lehr Oct 11th 2013.