American Civil Liberties Union (ACLU) attorneys representing the petitioners in The Association for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (U.S., docketed October 1, 2012), have filed their petition for review before the U.S. Supreme Court. Information about the Federal Circuit Court of Appeals ruling from which the petition has been filed appears in Issue 41 of this Bulletin. The Federal Circuit reaffirmed its earlier ruling on the patentability of human genes after remand from the U.S. Supreme Court for consideration in light of Mayo Collaborative Services v. Prometheus, Inc., 132 S. Ct. 1289 (2012).
The petitioners ask (i) “Are human genes patentable?”; (ii) “Did the court of appeals err in upholding a method claim by Myriad that is irreconcilable with this Court’s ruling in Mayo?”; and (iii) “Did the court of appeals err in adopting a new and inflexible rule, contrary to normal standing rules and this Court’s decision in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007), that petitioners who have been indisputably deterred by Myriad’s ‘active enforcement’ of its patent rights nonetheless lack standing to challenge those patents absent evidence that they have been personally threatened with an infringement action?” A response is due October 31, 2012.