Wednesday, December 17, 2014

Myriad is Finished


Last year, following their loss in the Supreme Court, Myriad sought to block competition in a last ditch effort by suing Ambry and others who would offer BRCA testing. They lost a motion for a preliminary injunction, which would have prevented their competitors from offering tests while the suit was pending, then they appealed that to the CAFC, who today rejected their claims on appeal. This fight is done.

Echoing reasoning I have advocated, the court held:

"Contrary to Myriad’s argument, it makes no difference
that the identified gene sequences are synthetically
replicated. As the Supreme Court made clear, neither
naturally occurring compositions of matter, nor synthetically
created compositions that are structurally identical
to the naturally occurring compositions, are patent eligible.

Myriad has lost all the way, and the BRCA genes and technologies and methods associated with their detection are where they belong: in the commons.

UPDATE: it's particularly good timing as the second edition of Who Owns You is in production and due out in May, including a section about the Myriad case which started after my book was first published. For a recent presentation regarding my theory of the commons and how it relates to the current status of the case law, you might want to scroll through this.