According to Genome Web, Myriad, and the other relevant patent-holders, have filed suit in the U.S. District Court for the District of Utah against Ambry Genetics on the ground that Ambry’s announced BRCA1 and BRCA2 testing infringes the patents held by Myriad and others. (And here’s a newer, longer, very good Genome Web story.)
Myriad took an aggressive posture immediately after the Supreme Court decision, claiming that their more than 500 valid patent claims still provided get intellectual property protection for their BRCA testing business. Given that
1. The Supreme Court has invalidated its composition of matter claims for BRCA,
2. The Court of Appeals for the Federal Circuit, following the Supreme Court’s decision in Mayo v Prometheus, earlier invalidated its process claims for the method of comparing its patent sequences with a patient’s sequences to make risk predictions, and
3. Ambry’s tests use a sequencing method that does not seem to require that it make cDNA of the BRCA genes, as to which the Supreme Court upheld the patent claims,
it will be really interesting to see Myriad’s arguments on this infringement case.
I suppose that after their aggressive response to the Court decision, failure to sue might have opened them up to securities law violations. And, of course, I have not seen the complaint or studied the (so far non-existent) details of this suit. And I’m not a patent lawyer. So maybe they’ve got some good arguments. It would surprise me. (But I’ve been surprised before.)