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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

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March 19, 2014

Myriad Continues Fight Over BRC Genes

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Posted by Alan Wexelblat

It's often the case that the reporting on a story ends with a Supreme Court decision. That's not entirely wrong, as often a decision from SCOTUS is directive and all that remains is carrying out the proper procedures in light of what the Court has said. However, in many cases there's a great deal more to it, because the Supreme Court doesn't formally settle cases; rather, they rule on questions of laws, interpretations, and novel issues. Once they've made such a ruling the case is usually remanded back down to a lower court for further proceedings, in light of what the Court has said.

Such is the case with Myriad Genetics, which is now back in lower court arguing in defense of its patents despite a unanimous SCOTUS ruling against it. Perhaps Myriad believes its own press about the Court decision being a victory, or perhaps it - like myself and several other commenters - believes that the Court got the science wrong and that lower courts might act on the basis of better scientific understanding.

So, as the ACLU blog report details, Myriad just lost an attempt to get a Utah judge to issue a preliminary injunction. Myriad is arguing that its patents still allow it some form of monopoly control on breast-cancer testing. This is almost certainly wrong, in light of the Supreme Court's decision, but Myriad's suit can go to trial even though the judge does not feel it has a high enough likelihood to success for a preliminary injunction.

Myriad continues to be opposed not only by other commercial entities but by non-profit organizations such as the ACLU and the National Institutes of Health, which believe that regardless of how any specific SCOTUS ruling is interpreted, there is a fundamental (if philosophical) interest in opposing companies that attempt to use patent-level monopolies on key health technologies. Unfortunately I think that not only is Myriad not going away but this issue will rise again as research pushes out into novel frontiers of genetic and molecular medicine.

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