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Myriad: How Did Public Policy Weigh In?

BY Larry A. Roberts
April 29, 2010

In Association for Molecular Pathology v. USPTO, the United States District Court for the Southern District of New York invalidated patents related to isolated BRCA1 and BRCA2 breast and ovarian cancer susceptibility genes. The surprising aspect of the decision was the reason for invalidity ' the district court held that the isolated genes did not constitute patentable subject matter under 35 U.S.C. ' 101.

Myriad Patents

The case is often referred to as the “Myriad” case, a reference to the declaratory judgment defendant Myriad Genetics, Inc. that has commercialized the patents at issue. Myriad provides clinical laboratory services within the claims of the patents and used its patent rights to preclude others from doing so. The declaratory judgment plaintiffs include the ACLU, taking a public policy position with respect to the patents at issue, and various organizations, testing labs, physicians and patients who feel they are precluded from practicing Myriad's patented invention.

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