As we reported yesterday, Myriad Genetics has already filed a lawsuit against Ambry Genetics alleging patent infringement of 10 different patents (University of Utah Research Foundation v. Ambry Genetics, 13-640, U.S. District Court for the District of Utah). The alleged infringement relates to Ambry's offering of genetic diagnostic tests for breast cancer based on BRCA1/BRCA2 gene mutations.
Clearly, however, Myriad's lawyers are working overtime. Even before the ink is dry on their complaint against Ambry, Myriad is back in court seeking a judgement against Gene by Gene Ltd for patent infringement of their claims to genetic diagnostic tests for BRCA1/BRCA2 mutations.
The complaint against Gene by Gene, filed in the District of Utah on 10 July 2013, is substantially similar to Myriad's complaint filed against Ambry on 9 July 2013. In this new complaint, Myriad alleges that Gene by Gene began offering BRCA1/BRCA2 diagnostic testing on 13 June 2013, and is therefore infringing 32 different claims in 9 patents held by, or exclusively licensed to, Myriad. A difference of note from the Ambry case is that Myriad is not alleging that Gene by Gene is infringing claims 32 and 33 of US Patent 6,051,379, a method that includes a step of producing DNA restriction fragments.
As in their action against Ambry, Myriad seeks a judgement for patent infringement, an injunction, delivery for destruction of all "products" that infringe, and accounting and damages. In addition, as in their action against Ambry, Myriad requests that Gene by Gene pay attorney's fees, the cost of the lawsuit and enhanced damages. Myriad requests a jury trial. Clearly Myriad is serious about protecting the intellectual property remaining in their current BRCA1/BRCA2 patent portfolio. Undoubtedly, there are other genetic diagnostics companies out there that are just waiting to see if they will be Myriad's next target.