Lengthening Shadows: Biotechnology and Patent Eligibility

• Author: Michael A. Sanzo
• Position: Michael A. Sanzo is a patent attorney working in the areas of chemistry, biotechnology, and pharmaceuticals. He can be reached at mike@msanzolaw.com.
• Pages: 50-57

Published in Landslide® magazine, Volume 9, Number 5 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This

information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

On June27, 2016, the U.S. Supreme Court denied certiorari in Sequenom v. Ariosa.1 The deci-

sion is of considerable interest to a biotechnology industry that had been looking for a signal

as to whether the Court actually intended the full consequences of its Mayo2 and Myriad3 deci-

sions. More than 20 amicus briefs were led urging that certiorari be granted, and it was hoped that

an appeal would provide an opportunity to better dene the scope of patent eligibility as applied to

therapeutic methods and recombinant technology.

The denial suggests that the Court is, as a practical matter, indifferent to the problems that its

past decisions have created in biotechnology and that the best chance for the preservation of a viable

industry in the United States is through congressional action. In the short term, companies will need

to develop strategies for protecting intellectual property in the presence of a Supreme Court that

appears increasingly unsympathetic to patent rights.

Lengthening

Shadows

Biotechnology and

Patent Eligibility

By MichaelA. Sanzo