Myriad faces yet another patent battle

Genetic diagnostics company Invitae Corporation has requested declaratory judgment at the US District Court for the Northern District of California that it does not infringe 11 patents owned or exclusively licensed to Myriad Genetics.

Invitae filed the action to declare the patents are invalid and not infringed on November 26, one day after Myriad filed a patent infringement case against it at the US District Court for the District of Utah.

The patents concerned are related to breast cancer susceptibility genes BRCA1 and BRCA2, which both companies use in their genetic tests.

Invitae argued that the “very different approach” it takes in its own BRCA1 and BRCA2 genetic tests is not covered by any valid claim of a Myriad patent.

It added that a “vast portion of the landscape purportedly claimed by Myriad patents has been washed away” after the Supreme Court decided that that naturally occurring DNA that has been isolated cannot be patented in the Association of Molecular Pathology v Myriad case.

As the Supreme Court invalidated certain claims held to be unpatentable in the case, all similar claims should similarly be declared invalid, Invitae said in the motion.

In a statement on its website, Invitae said that it disagrees with the allegations of the suit and “plans to vigorously defend itself against the lawsuit, which it believes has no merit.”

Since the conclusion of the Supreme Court case in June this year, Myriad has launched a series of similar lawsuits against genetic testing companies including Ambry Genetics and Gene by Gene, which it accused of patent infringement.

In October Quest Genetics filed for declaratory judgment that its genetic tests do not infringe Myriad’s patents.