August 31, 2011
AMP v. USPTO: Plaintiffs Request Rehearing at Federal Circuit
The plaintiffs in AMP v. USPTO have filed at the Federal Circuit to request a rehearing of the case in which they have challenged the eligibility of the patent claims to the BRCA1 and BRCA2 genes. Petition here. The Federal Circuit decided against the eligibility of the composition of matter claims (genes), with reasoning that relied on a structural differences between native and isolated DNA. The plaintiffs contend now that the court was in error, as the genes are claimed by function ( “codes for a BRCA1 polypeptide"), not structure, and thus they maintain their argument that there is no functional difference between a native residing or isolated DNA molecule, as each is capable of performing (and isolated in order to do so) as a gene/DNA template whether in vitro or in vivo. The petition further calls for a reconsideration as to which of the multiple plaintiffs have standing, asserting that geneticist Ellen Matloff and the American College of Medical Genetics are parties with valid standing to contest the patent claims.