Myriad Genetics now reportedly has six pending infringement lawsuits involving its BRCA1 and BRCA2 patents, with Invitae Corp. and Laboratory Corp. most recently named as defendants. According to a news source, Myriad has asked to consolidate all of the lawsuits in Salt Lake City, Utah, including the three in which it has been named as a defendant. Invitae filed its suit in a federal court in California just one day after Myriad sued the company in a Utah federal district court. Invitae asserts 22 claims for relief, challenging the validity of 11 Myriad patents and seeking declara- tions of non-infringement. Invitae Corp. v. Myriad Genetics, Inc., No. 13-5495 (U.S. Dist. Ct., N.D. Cal., filed November 26, 2013).
Invitae alleges that its “comprehensive test offers the sequencing of over 200 human genes, all for less than the cost of what others might charge for a test that sequences one or two.” It also claims that it “performs its sequencing using a very different approach than that claimed by the Myriad patents.” Contending that its different approach “is not covered by any valid claim of a Myriad Patent,” Invitae notes that “[a] vast portion of the landscape purportedly claimed by the Myriad Patents has been washed away in the wake of . . . Federal Circuit and [U.S.] Supreme Court decisions” and that “the mere method of ‘comparing’ or ‘analyzing’ (i) the genetic sequence data from a patient with (ii) another sequence, such as a reference or wild type sequence, or a sequence having a known mutation, is patent ineligible as an abstract idea, and also patent ineligible as a law of nature.”
Invitae co-founder Randy Scott said, “We believe the Supreme Court rulings validate Invitae’s view that no company can claim ownership over naturally occurring genetic information. Our suit is based on the teachings of these cases. The legal process will take its course, and we are steadfast in our resolve.” See Invitae Corp. News Release, December 2, 2013; The Salt Lake Tribune, December 9, 2013.