Hans Sauer, BIO’s Deputy General Counsel for Intellectual Property, comments on the Department of Justice’s brief and oral argument in the Myriad “gene patent” case. Read his guest collumn on IPWatchdog.
I have often wondered why the DOJ showed up out of nowhere two years ago, and started pressing legal theories that are contrary to decades of U.S. government policy and established patent law, and that would potentially invalidate thousands of patents to DNA molecules, enzymes, flavorants, pigments, dyes, fermentation products, fragrances, fungal antibiotics, and other naturally-sourced substances.
Sauer goes on to argue that the DOJ’s test is unworkable:
It asks the Federal Circuit to rely on asserted facts and unstated claim constructions. It requires strained interpretations of leading precedent. It is evasive and avoids the hard work of construing the claims and applying them to the activities believed to be “tied up” – lawyer work that, if undertaken, may or may not show that the preemptive scope of these claims isn’t all it’s trumped up to be.
