While the Federal Circuit Court of Appeals has ordered the parties in Molecular Pathology v. U.S. Patent and Trademark Office (Myriad Genetics) to address the effect of the U.S. Supreme Court’s Prometheus Laboratories ruling on the validity of the composition and method patents at issue in Myriad Genetics, the defendant, which holds an exclusive license to the patents, has once again raised whether the challengers have standing.  

Myriad Genetics has filed a suggestion of mootness or a motion to remand, arguing that the lone plaintiff with standing has left the clinic where he was previously employed and “now works at unrelated institutions. Myriad has never had any communications with those institutions regarding the challenged patents; indeed, unlike the situations with NYU [New York University] in 1998, Myriad has no knowledge whatsoever of what, if any, activities those institutions have engaged in or engage in presently. Accordingly, Dr. Ostrer’s change in employment mooted any real or immediate dispute that might otherwise have been before this Court.”  

Myriad requests that the court dismiss the appeal, which was remanded to the Federal Circuit by the U.S. Supreme Court, or remand the case for the district court to make a determination on standing. At issue is whether isolated DNA is patent eligible; additional information about the case and the Federal Circuit’s split ruling appears in Issue 18 of this Bulletin.