Monday, March 21, 2016

Sequenom Petitions Supreme Court for Review of Ariosa Decision


Sequenom today filed a Petition for Writ of Certiorari asking the Supreme Court to review Ariosa Diagnostics v. Sequenom, an important patent eligibility case described in previous posts (see for example).  If the Court grants certiorari, it will be the sixth grant of certiorari on the issue of patent eligibility in the last decade (the first was LabCorp v. Metabolite, a case that was fully briefed and argued but ultimately dismissed because certiorari had been “improvidently granted”).  Significantly, it would be the fourth case in which the patent relates to diagnostic testing (LabCorp, Mayo, and Myriad where the other three).  The petition for certiorari is available here.

 As framed by Sequenom, the question presented is:
Whether a novel method is patent-eligible where: (1) a researcher is the first to discover a natural phenomenon; (2) that unique knowledge motivates him to apply a new combination of known techniques to that discovery; and (3) he thereby achieves a previously impossible result without preempting other uses of the discovery?

Sequenom argues that the Federal Circuit’s interpretation of Mayo will have catastrophic effects on biomedical innovation, likely precluding effective patent protection for important inventions such as vaccines, methods of pharmaceutical treatment, and most particularly methods of diagnostics.  Pointing to three opinion penned by Federal Circuit judges in the denial of en banc rehearing, Sequenom argues that the Federal Circuit believes that its hands have been tied by the broad language of Mayo, and that only the Supreme Court can address the situation.
Sequenom argues that the Federal Circuit’s decision below has exacerbated the confusion created by Mayo “by jettisoning the one reliable compass this Court has identified for Section 101 cases-the patent’s ‘preemptive’ scope.”  Their brief posits that under the Federal Circuit’s interpretation of Mayo, a number of historic inventions would have failed the test for patent eligibility, including the method at issue in Diehr (which the Supreme Court found to be patent eligible in 1981), the invention claimed in the very first patent issued in the U.S. (which was signed by George Washington after being reviewed by Thomas Jefferson), and PCR.
The petition argues that this case is an ideal vehicle for clarifying Mayo, pointing out that “this is an extremely well-ventilated patent, with a far-more-developed record than is usual for Section 101 cases.”  For example, the claims have been construed and the patent has already undergone inter partes review.  In addition, the patent includes not only relatively broad independent claims, but also narrower dependent claims that “refine down to the level of individual tests.”

According to Sequenom, supporting amicus briefs will need to be filed no later than April 20.  I would expect to see a number of those.  Quite a few were filed with the Federal Circuit in support of en banc rehearing - many of them can be found in previous posts on my blog.

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