Inevitable? Supreme Court Myriad Ruling Leads to Challenge of Human Stem Cell Patent

When the Supreme Court ruled last month that human genes were not patent eligible, writes attorney Antoinette Konski of Foley & Lardner:

“[m]any in the biotech community were relieved that the Supreme Court in Myriad limited its holding of patent-ineligibility to isolated, naturally-occurring genes. However, patent practitioners cautioned that Myriad’s holding could potentially be applied to other isolated, naturally-occurring products, including stem cells.”

That day has come:

“Consumer Watchdog (a self-described public charity dedicated to provide a voice for taxpayers and consumers) has asked the Federal Circuit to apply the holding of Myriad to in vitro cultured, human embryonic stem cell cultures and deem them patent-ineligible for failing to satisfy [the novelty and non-obviousness requirements of] 35 U.S.C. § 101.”

[T]he question for the Federal Circuit in this case is whether the claimed, cultured human embryonic stem cells (hESCs) are markedly different from naturally-occurring hESCs. […] Or, put differently, are hESCs more like patent-eligible man-made genes or more like patent-ineligible isolated, naturally-occurring genes?”

Stay tuned for more on this as additional updates come in…

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