myriad-v-ambry
8 August 2013Americas

Myriad patent suit enters antitrust territory

Ambry Genetics, the laboratory sued last month by biotech company Myriad over patents covering the BRCA1 and BRCA2 genes, has hit back with antitrust claims.

Myriad accused Ambry of infringing 10 patents after it began offering tests for breast and ovarian cancer. The suit followed the US Supreme Court’s ruling in June that human genes are not patent eligible and that struck down several Myriad patents.

In response, Ambry has accused Myriad of trying to monopolise the market despite knowing that its asserted claims are rendered invalid by the Supreme Court decisions in Myriad and Prometheus.

Ambry has also submitted invalidity and non-infringement counterclaims at the US District Court for the District of Utah, where Myriad filed the suit in July with other plaintiffs including the University of Utah Research Foundation.

“Myriad continues a practice of using overreaching practices to wrongfully monopolise the diagnostic testing of humans’ BRCA1 and BRCA2 genes in the United States and to attempt to injure any competitor who challenges Myriad’s monopoly, including Ambry. This includes conduct by Myriad of falsely representing to genetic counsellors and payers as to the accuracy of Ambry’s BRCA1 and BRCA2 diagnostic products,” Ambry claims.

It adds that Myriad is wrongly able to charge customers twice as much as Ambry and other’s customers and that Myriad’s “illegal enforcement of the asserted patents has ensured that customers have virtually nowhere to turn but Myriad and its monopoly-priced products”.

Responding to the filing, a Myriad spokesman said the company is in the early stages of the litigation and looks forward to presenting its case in court.

“The BRCA patent owners will demonstrate that the testing process employed by Ambry infringes 10 patents covering synthetic primers, probes and arrays, as well as methods of testing, related to the BRCA1 and BRCA2 genes. We are confident that our claims will prevail and that Ambry’s counterclaims lack merit. The claims at issue in this case are not the same as those in the Supreme Court case, which was a separate matter.”

Filing antitrust claims in response to a patent infringement lawsuit is unusual but not unheard of, said Andrew Williams, partner at McDonnell Boehnen Hulbert & Berghoff LLP.

Williams said he felt Ambry’s counterclaims will struggle to have much merit because Myriad and its co-complainants have patents covering wide ranging aspects of the testing for breast cancer.

“The Supreme Court invalidated a subset of those claims but a lot have been left unchallenged or to be determined valid.”

“The problem is that there are a lot of (patent) claims left here,” Williams said.

Ambry is represented by Traskbritt PC and McDermott Will & Emery LLP, while Myriad is represented by in-house counsel. Parsons Behle & Latimer is also representing Myriad and the remaining plaintiffs.

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More on this story

Americas
10 July 2013   Biotech company Myriad Genetics has filed a patent infringement case against Ambry Genetic Corp for allegedly infringing 10 patents related to genetic diagnostic testing.

More on this story

Americas
10 July 2013   Biotech company Myriad Genetics has filed a patent infringement case against Ambry Genetic Corp for allegedly infringing 10 patents related to genetic diagnostic testing.

More on this story

Americas
10 July 2013   Biotech company Myriad Genetics has filed a patent infringement case against Ambry Genetic Corp for allegedly infringing 10 patents related to genetic diagnostic testing.