The Court of Appeals for the Federal Circuit just decided the AMP v. Myriad case after the Supreme Court gavrilo’d (granted, vacated, and remanded) it in light of Mayo v. Prometheus. The case went back to the same three judges who had written the first, fractured, opinions. And this time, they did it again.
We have two slightly different takes on this set of decisions and what they mean. The first (below this, which was posted second) comes from our new CLB fellow, Jake Sherkow. The second (which was posted first – reverse chronological ordering in blogs can get confusing) is from one of his predecessors, our former CLB fellow, current CLB non-resident fellow, and Associate Professor of Law at Thomas Jefferson School of Law, Brenda M. Simon.
This is your chance to weigh in on these issues. I suggest people direct comments that are specific to each post to that post, while putting more general comments after this post. And, to start the action, I want to ask Brenda and Jake (and anyone else reading) two questions:
1. En banc? Will the CAFC (if asked) take this case en banc and, if so, what will it do?
2. The Court? Assume these opinions are not modified by en banc consideration. What would the Supreme Court make of it – appropriate application of its Prometheus opinion to the facts of this case, rank mutiny, or something in between?