re: #126 Absalom, Absalom, Obdicut

It is important to note what is not implicated by this decision. First, there are no method claims before this Court. Had Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent. But the processes used by Myriad to isolate DNA were well understood by geneticists at the time of Myriad’s patents “were well understood, widely used, and fairly uniform insofar as any scientist engaged in the search for
a gene would likely have utilized a similar approach,” 702 F. Supp. 2d, at 202-203, and are not at issue in this case.

Similarly, this case does not involve patents on new applications of knowledge about the BRCA1 and BRCA2 genes. Judge Bryson aptly noted that, “[a]s the first party with knowledge of the [BRCA1 and BRCA2] sequences, Myriad was in an excellent position to claim applications
of that knowledge.

It appears that process could still be patented, so long as it meets the applicable existing tests. I think it’s interesting that Myriad opted not to seek a patent on its process. Nothing in their process was so unique so as to support a patent claim.