Court watchers were reportedly surprised that both sides to litigation involving the patentability of genetic discoveries filed petitions for a rehearing before the divided Federal Circuit Court of Appeals panel that issued a ruling on the matter in July 2011. Observers apparently expected that the parties would instead file for consideration by the full Federal Circuit court or request that the U.S. Supreme Court consider hearing an appeal. Additional information about the case, Association for Molecular Pathology v. U.S. Patent and Trademark Office, No. 2010-1406, appears in Issue 18 of this Bulletin.
The plaintiffs, who sought to invalidate the patents, reportedly argue that the majority erred because “the language of the patents defines the function, not the structure of the patented genes and gene fragments; [and] gene fragments with the altered chemical structure identified by the Court exist in nature.” Myriad Genetics Inc., the patent holder that won the appeal, sought to render the case moot, without vacating the opinion on the merits, by removing from the case the only plaintiff with standing. See BNA Life Sciences Law & Industry Report, September 9, 2011.