Replies to post #93455 on Biotech Values

[rkrw]

I think that's overstating it a bit!

Maybe it's bad for someone like mygn which is making a fortune off a few genes. Players working on more comprehensive tests should benefit, they may have been blocked from developing a more comprehensive test by i.p. for few gene tests. There's also many big players who do very well with unpatented tests.

[biomaven0]

The key case to watch is in re Bilski which was argued before the Supreme Court last November but has not yet been decided. This relates to business method patents, but the Court of Appeals decision was very broad and restricted such patents to those making a "transformation" or involving a "machine." It was a very poor decision in my opinion, produced by judges that don't understand computers for one thing. (The notion that something could be an invention if you hardwire it, but not if you write a program to perform the exact same activity on a general-purpose computer is naive beyond words).

The court here followed Bilski in overruling the MYGN process patents here. Hopefully this decision will serve as a wake-up call to the Supreme Court about how much of an overreach the appeals court decision in Bilski was.

Anyhow, if the Supreme Court overrules or narrows Bilski, then tests for biomarkers and the like should again become patentable. I personally see no rationale for allowing a composition of matter patent for a gene though.

(BTW, Bilski was a really broad and stupid patent for hedging commodities that should never have been granted in the first place for other reasons).

Peter

[genisi]

Regarding Judge Sweet’s decision on the USPTO’s motion for judgment on the pleadings, re Myriad Genetics’ BRCA patents:
Bear in mind that MYGN still has other 'method of use' patents covering the test, which were not invalidated. MYGN will appeal in circuit court and litigation will take few more years. As noted by Peter, Supreme Court ruling in Bilsky case might change the view.

[DewDiligence]

Re: MYGN case and ag biotech

There’s a fairly serious misstatement in a later version of the same NYT article:

http://www.nytimes.com/2010/03/31/business/31gene.html

…if the judge’s reasoning is upheld on appeal, the invalidation of genetic patents could hit diagnostics companies, agricultural biotechnology companies and perhaps even traditional drug makers…

It’s highly unlikely that ag biotech companies such as MON will be adversely affected by the MYGN case, IMO. MON takes genes that have never existed in a given plant species such as corn or soy and inserts these genes into the plant’s genome. This is clearly a patentable invention according to the current standard and any reasonable future standard.