Attorney: Myriad Decision Shows SCOTUS Striking Necessary Patent Law Balance

“You know you’re living in the end of days when both the ACLU and the Wall Street Journal praise the same Supreme Court decision…” – Gideon Schor

Here’s an interesting perspective on yesterday’s Supreme Court decision in AMP v. Myriad from Gideon Schor, litigation partner at Wilson Sonsini Goodrich & Rosati [bold ours]:

“…The Court struck a balance that a broad spectrum of interests can at least live with, if not embrace. And patent law is all about balance. If you want to spur invention, you need to give inventors two things:  incentive and knowledge. But the two are in tension. Broader patent protection means more incentive; narrower patent protection means a greater knowledge base. The Court’s role is to balance them”

Attorney Schor submitted an amicus brief in the case on behalf of Dr. Eric Lander, a leading genomics researcher:

“The brief that we filed on behalf of Dr. Eric Lander suggested a balance – isolated genomic DNA is patent-ineligible, while cDNA is patent-eligible – that the Court adopted. We also know that the science cited in our brief was likely persuasive to the Court: At oral argument, three Justices referred to our brief in questioning Myriad’s counsel. So the Court was apparently struck by the thirty years of scientific papers we cited showing that isolated genomic DNA fragments are found naturally occurring both in cells and outside the cell (e.g., in sputum, stool, urine, and cell-free blood). The science was so strong, in fact, that the real question was not whether the Court would reverse the Federal Circuit (which had held, contrary to all the science, that isolated genomic DNA fragments are not naturally occurring) but rather whether the Court would issue a broad or a narrow holding. In the event, the Court’s holding was careful, and its language was spare.”

Schor’s comment is included in our legal perspective on the Myriad decision, published yesterday and with new insights added as they come in:

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