The Supreme Court has granted cert in Association of Molecular Pathology v. Myriad Genetics, a decision that seemed inevitable from the moment the Federal Circuit issued its fractured, confused set of opinions upholding the breast cancer gene patents. The case represents another foray by the Supreme Court into patentable subject matter, on the heels of Bilski (abstract ideas) and Mayo (laws of nature). This is, of course, a problem of the Court’s own making: its decisions setting out common law exceptions to patentable subject matter have vexed lower courts and scholars alike, and the Court keeps attempting to clarify its doctrine.
Myriad, and the line of cases behind gene patents, rely critically on Parke-Davis v. H.K. Mulford Co., a decision by Judge Learned Hand upholding a patent on purified adrenalin. My friend and former BLS colleague Chris Beauchamp has a terrific article coming out in the Stanford Technology Law Review that is simultaneously a deft exploration of this area of patent law, a brilliant history of the case, and a fascinating case study of the culture of patenting in an industry (and how it can break down). It is almost unbelievably prescient in its timing and analysis, and I highly recommend it. If anyone knows of a way to get it in front of the justices – or, at least, their clerks – please let me know.