30 August 2013Americas

Amici submit brief to support Ambry in Myriad case

On August 21, the American Civil Liberties Union (ACLU), Association for Molecular Pathology (AMP), the Public Patent Foundation (PUBPAT) and other groups submitted an  amici curiae brief to the US District Court for the District of Utah, Central Division, in support of Ambry Genetics and Gene by Gene in their patent infringement cases with Myriad Genetics Inc et al.

Myriad sued the companies in July this year requesting a preliminary injunction.

It alleged the companies’ genetic screening tests, which became available immediately after the US Supreme Court decided that naturally occurring segments of human DNA are patent ineligible in the Myriad case, infringe claims on 10 of its patents related to the BRCA1 and BRCA2 genes.

The amici include ACLU and PUBPAT, who said that because they represented the 20 individual and organisational plaintiffs that challenged Myriad’s patents in the Myriad case, they are “well-positioned” to inform the court about the issues raised and decided in it.

In the brief, theyargued that Myriad’s motions for preliminary injunction should be denied. They said Myriad may not monopolise any and all examination of genetic information under section 101, which states that any useful process, machine, manufacture, or composition of matter may obtain a patent.

The parties also argued that Myriad’s method claims are not based on an inventive concept and “preempt basic scientific activities and use laws of nature.”

Granting a preliminary injunction based on the patent claims would be a violation of the First Amendment and patent clause of the US constitution, as it gives Myriad exclusive control over a body of knowledge, and would also harm the public interest, they added.

Anthony Tridico, a partner at Finnegan Henderson Farabow Garrett & Dunner LLP in Brussels, said that Ambry’s argument that Myriad’s method claims are in breach of the First Amendment is “absolutely not something you see in most cases.”

He said an amici curiae brief of this nature will not likely play a “significant role” in the case, though added: “At this point, the parties are only at the preliminary injunction stage. Since public interest is a factor for preliminary injunctions, it may be considered by the judge in his determination of the public interest in granting the preliminary injunction.”

He said that submission of the brief in not likely to change Myriad’s strategy at all. “It is still a patent infringement case to be decided on the merits,” he said.

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