FC Decides Myriad Rehearing

The FC has decided the rehearing of the Myriad case.
Judges Lourie and Moore have reiterated their positions in FC Myriad I, while Judge Bryson appears to have softened his opposition somewhat.
The decision is here.

Myriad to be Decided Today

According to Hal Wegner, patent law expert, the decision in the FC rehearing of the Myriad case is due out today.  No matter which way it goes, it is very likely to be appealed to the SCOTUS.  The only scenario in which this may not happen is if the Myriad company heeds appeals by the patent blogosphere to drop the case.   We shall see.

SIR Repealed

We have previously stated that the Statutory Invention Registration (SIR) may be used if, for example, for ethical reasons a patent does not wish to be obtained.

In his popular blog Patent Docs, blog-master Donald Zuhn,points out that the section of Title 35 that provides for Statutory Invention Registrations (§ 157) was repealed by § 3 of the Leahy-Smith America Invents Act. The repeal of § 157, and resulting elimination of SIRs, becomes effective March 16, 2013. Thank you for pointing that out, Don.  I suppose that a similar aim could be accomplished by publication of the patent for purposes of opposition and then disclaiming the claims. This is what happened in U.S. Patent No. US-6,444,872-B1, May 24, 2004, when the International Center for Technology Assessment opposed the University of Texas in its patent on a beagle whose immune system was compromised to facilitate the dog’s use in medical experiments.

See: http://www.icta.org/patent-watch/legal-actions-5/

and reported in my book, "Other Peoples Bodies."

Waiting Game...

The oral arguments are in on the Myriad case, round 2 before the CAFC and now we just have to wait patiently for the decision.  One counsel's best guess is 2-3 months, which would put the decision somewhere around the Jewish holidays of Rosh Hashanah, Yom Kippur, or Sukkot.  My prediction, however is that it will be sooner than that.  In a widely read patent blog "a former clerk" posited that the judges had already made up their minds on the briefs, which would make the arguments just so much window dressing.  If you hear before I do, please let me know.

Pleas to Myriad: Drop the Case

There have been increasing calls for Myriad to drop its case before it reaches the Supreme Court again.  For example in his blog Patents4Life, Warren Woessner has a post titled,

"Why Myriad Should Drop Its Appeal"

,Although Dr. Woessner and I have disagreed several times in the past,  we are in agreement on dropping the Myriad case. This will clear the way for plaintiffs in all the USDC’s over the country to challenge patents claiming genetic material. This is the scenario I predict in my book “Other Peoples Bodies” (available on LuLu.com) in the section “Target Patents.” While this will kill prosecution it will create a bonanza for litigators and finally force Congress to do something meaningful in the field.

Matthew Dowd, Patent Attorney

Matthew Dowd, of the firm Wiley Rein wrote the amicus brief of James Watson which we reported in our post on July 18.  This brief has sent shock waves around the blogosphere.  Much to our astonishment, Dowd is a graduate of George Washington University Law School (Coif).  He also clerked for Judge Michel when he was on the FC.  He was kind enough to provide us with a copy of the Watson Brief.  He told us that Watson will probably be filing another amicus before the SCOTUS.

Oral Arguments

We just back from the oral arguments in the Myriad case in the rehearing before the FC.
There were no surprises. James Watson was cited by counsel for Myriad!  It makes me think the gentleman didn't read the Watson amicus brief.