This is from a post on the Patent Docs blog today. It further explains and comments on the Myriad decision that denied the company a preliminary injunction that would prevent Ambry from offering BRCA testing. As the blog explains, there are 4 elements to be met to obtain a preliminary injunction. These are:
- Myriad would have to establish a liklihood of success on the merits of its patent claims
- Myriad would be irreparably harmed financially without an injunction
- The balance of hardship's is in Myriads favor
- The public interest would not be harmed in issuing the injunction
So how did Myriad do versus these standards? Buzzzzzzzzz! Myriad could only convince the court that standard number two above would apply. Nada on the other three. In particular, the Court stated that Myriad was unlikely to prevail on the merits. Ouch! The Court basically said that Myriad's patents and behaviour in enforcing them were a detriment to the advancement of the field. That can't be good.
One biotech IP attorney shrewdly commented, "Since when does a patentee lose the right to assert her patent just because she acts like a jerk." Well, in a nutshell, since Myriad started arguing its case(s) before the courts. Many times honey does get you more than vinegar.
Posted by Bruce Lehr Mar 12th 2014.