Firm may ask Supreme Court to over­turn life science patent rul­ing

Modern Healthcare - - THE WEEK AHEAD - —Lisa Schencker

Life sci­ences com­pany Se­quenom will soon de­cide whether to ask the U.S. Supreme Court to re­view a re­cent rul­ing on patents that some say could threaten many med­i­cal and biotech­nol­ogy in­ven­tions.

San Diego-based Se­quenom said last week that it was con­sid­er­ing ap­peal­ing a lower court de­ci­sion in­val­i­dat­ing its patent for an in­ven­tion that tests a mother’s blood for ge­netic traits in her fe­tus.

In June, a three-judge panel of the U.S. Court of Ap­peals for the Fed­eral Cir­cuit up­held a dis­trict court’s de­ci­sion to undo the patent be­cause of a prior Supreme Court rul­ing that nat­u­ral phe­nom­ena can’t be patented. Last week, the ap­pel­late court de­nied Se­quenom’s re­quest that it re­hear the case be­fore a full panel of judges.

Se­quenom had ar­gued that the de­ci­sion “threat­ens to swal­low many more mer­i­to­ri­ous in­ven­tions along with this one.” The com­pany noted that the “core of nearly ev­ery ma­jor in­no­va­tion is the dis­cov­ery of a fact about the nat­u­ral world.”

Arti Rai, a Duke Univer­sity in­tel­lec­tual property law ex­pert, said that if the lower court’s de­ci­sion stands, it could make it more dif­fi­cult for smaller com­pa­nies to bring new di­ag­nos­tics to mar­ket. “It’s a very sig­nif­i­cant blow to patent­ing in this space,” she said.

It’s un­known if the Supreme Court will agree to hear the case, but sev­eral of the lower court judges pointed a way for­ward for the jus­tices, Rai said.

Ap­pel­late Judge Ti­mothy Dyk wrote that “fur­ther il­lu­mi­na­tion” from the high court about the is­sue of patent­ing nat­u­ral phe­nom­ena would be help­ful. “Any fur­ther guidance,” he wrote, “must come from the Supreme Court, not this court.”

Rai

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