Friday, September 16, 2011

Federal Circuit Denies Plaintiff(s)' Petition for Rehearing in AMP v. USPTO

Original article can be found at

By Kevin E. Noonan --

ACLU Yesterday, the Federal Circuit denied Plaintiffs' petition for panel rehearing in Association for Molecular Pathology v. U.S. Patent and Trademark Office. In their petition, counsel for Plaintiffs/Appellees asserted two grounds for rehearing, of points of law and fact overlooked or apprehended by the Court (see "Plaintiff(s) File Petition for Rehearing in AMP v. USPTO"). First, the petition contended that the Court "failed to consider whether the DNA fragments claimed in these patents are products of nature." Second, the Court was alleged to have erred by not finding that two other named Plaintiffs, the American College of Medical Genetics and specifically named plaintiff Ellen Matloff, satisfied the standards for standing enunciated by the Court.

Myriad The Court did not address Defendants' petition for panel rehearing. That petition asked the Court to review the standing issue based on their allegation that Dr. Harry Ostrer, the only plaintiff found to have standing, no longer has the capacity for "immediately begin[ning] to perform BRCA 1/2-related genetic testing" upon invalidation of the Myriad patents.

The one certain consequence of the filing of Plaintiffs' petition is that any petition for certiorari will be delayed, making it likely that the Supreme Court will decide the Prometheus Laboratories, Inc. v. Mayo Collaborative Services case before reaching the invalidated method claims in Myriad.