Myriad Finally Reaches the Supreme Court (But Only For a Moment)
Big news, right? Not really.
What this means is that the Court Granted cert in Myriad, but for the limited purpose of Vacating the Federal Circuit’s July 2011 decision and Remanding the case to that court for reconsideration in light of the Supreme Court’s decision last week in Prometheus.
As we wrote last week, there is nothing in Prometheus to suggest that the Federal Circuit should or will change its mind about the method claims it invalidated once before (relating to comparing BRCA gene sequences in cancer patients to sequences in healthy patients to identify deleterious mutations). Its decision upholding Myriad’s claims to methods of evaluating cancer therapies is a closer call, but nothing in Prometheus clearly compels the Federal Circuit to change its mind.
Finally, Prometheus said nothing at all about product patents, so there’s no good reason to think that the Federal Circuit panel will revisit—let alone reverse—its split (2-1) decision upholding those claims. While some commentators have suggested that there are implications for Myriad’s products of nature issue in Prometheus’s discussion of the laws of nature question that was central to that case, it’s hard to imagine that the Federal Circuit would discern from Prometheus any command to change its mind on the product claims in Myriad.
If the Supreme Court were ultimately to accept a second certiorari petition in Myriad—after the Federal Circuit’s remand decision—which is by no means certain, and is likely to be at least a year in the future, we’ll have plenty of time then to revisit the tea-leaf value of the Court’s laws of nature rhetoric. For now, though, Myriad heads back to the Federal Circuit and the status quo with respect to Myriad’s patents remains unchanged from yesterday.