Myriad v. Gene Dx, Inc.
In 2013, the US Supreme Court invalidated Myriad’s patent claims covering isolated DNA coding for the cancer causing BRCA1/BRCA2 by ruling that those isolated genes were unpatentable products of nature. However, the Supreme Court also ruled that the ‘created’ cDNA versions of the genes were patent eligible – or at least not excluded by the product-of-nature exception to subject matter eligibility.
Following that decision, a number of companies indicated that they would enter the market and begin BRCA1/BRCA2 diagnostic genetic testing in violation of the patents. Myriad responded aggressively by filing lawsuits against several companies, including Gene Dx for patent infringement. The case against Gene DX alleges infringement of sixteen different Myriad patents and is still pending in Federal Court in Utah where the parties have jointly agreed that settlement prospects are “low.” The case has been centralized before a multidistrict panel that is handling parallel cases against Gene DX, Quest Diagnostics, Ambry, and Counsyl.
In a bold move, Gene DX has now filed a set of inter partes review (IPR) requests – challenging 11 of the Myriad (or Myriad Licensed) patents. I should note, these challenged patents are different from the ones ruled-upon by the Supreme Court. In the IPR regime, patents can only be challenged on prior art grounds. Here, each of these patents have been challenged on either 103 (obviousness) or 102 (novelty) grounds.
NWPA declares himself to be the ultimate nominalist: If anything in the claim is a machine or a programmed computer, the claim passes 101. He declares everyone who disagrees with him some sort of smelly hound, rapist, killer, paid blogger, all of these, or even worse. He deals almost exclusively in slander and libel on this board.
I asked him the following question to see how he would respond. He has refused to answer, which tells one just who NWPA is.
Further Night, consider a novel and nonobvious poem and the following claims.
1. Claim to the poem.
2. Claim to the poem recited by a particular actress.
3. Claim to the poem written on a piece of paper using a particular kind of pen.
5. Claim to the poem recited by a talking computer robot.
6. Claim to the poem displayed on a computer screen by software.
Assume that all statutory subject matter is old and old in combination.
Assume for this discussion that a poem is nonstatutory.
Discuss which, if any, of the 6 examples is patentable and why.
poem…
(sigh)
Talk about lack of essential understanding…
Ned (in the best Wolfgang Pauli tones): Not even wrong.
(you have to improve to get to being wrong)
Ned, a poem is not software. The software has a functional relationship with the gen eral purpose computer.
The answer to your questions are that you are a smelly hound.
An apparatus that calls itself Ned, comprising:
a smelly hound coat; and
a smelly hound mind, wherein the smelly hound mind is configured to spend endless hours attempting to obfuscate the difference between non-functional matter from functional matter.
A machine that processes information. The conservation of information is the most important law of physics. (2. where the smelly hound mind is further configured to try and confuse the conservation of information with the laws of thermodynamics), information takes time, energy, and space to transform. Information processing machines are the most complex devices ever made by people. There are more people with IQ over 150 working on information processing methods than any other type of innovation.
There is a structural difference between a parallel resistor and serial resister.
I never said you were a rapist. That is a lie. I said you were a smelly hound and paid blogger. I proudly admit to that.
You can add dolt to the list too. And torturer of case law as a judicial activist.
And worst of all you are a supporter of the ultimate troll Milly Mor0n (MM).
(and wherein the smelly hound mind is further configured to instruct the smelly hound coat to emit smells offensive to the human nose during times that the smelly hound mind fabricates ridiculous arguments regarding 101.)
Whether a poem is software is not one of the questions asked and is not an answer to the questions asked. You are continuing to avoid the questions asked. Everyone can see this Night. Everyone.
Not even wrong (yet) Ned.
That you continue the canard of non-Useful Arts examples diminishes ANY point that you are trying to make.
Your choice – no matte how poor that choice is.
anon, on printed matter:
Frankly anon, I have no idea what you are talking about here. Are you saying that printed matter is non statutory?
What are you talking about? In re Russell held that printed matter was nonstatutory.
WHAT ISSUE? Printed matter was held by the CCPA to be nonstatutory. Policy concerns? Take that up with Congress that enacted 101.
But, anon, there were no “policy concerns” at all. Printed matter is nonstatutory.
Anon, you are still assuming a fact not in evidence.
Again, you are erecting strawmen in a field that does not and has never existed.
Printed matter is non statutory.
anon, on printed matter:
Frankly anon, I have no idea what you are talking about here. Are you saying that printed matter is non statutory?
What are you talking about? In re Russell held that printed matter was nonstatutory.
WHAT ISSUE? Printed matter was held by the CCPA to be nonstatutory. Policy concerns? Take that up with Congress that enacted 101.
But, anon, there were no “policy concerns” at all. Printed matter is nonstatutory.
Anon, you are still assuming a fact not in evidence.
Again, you are erecting strawmen in a field that does not and has never existed.
Printed matter is non statutory.
Ned – you lump everything as Set B printed matter and close your mind to all else.
Ned, how can a man of science not recognize that software is a component? In every way it acts functionally just like the old iron age components. Yet, you persist in trying to make these distinctions without a difference.
I know it is conceptionally hard for people like justices and Google shills to understand that software is a component. But, Ned, I know that you know. And you know that I know that you know.
So, what’s up? Why are you doing this ?
And Ned, my argument countering your transitory argument is a killer. You lose again in any fair objective way. Whether or not a Google shill will rule in my favor is another matter, but you lose AGAIN.
Software is not transitory in relation to solving the problem. The machine is forever changed when it is solving the problem.
Again, you know this. So, why do you keep trying to push these scientifically ridiculous arguments? They offend any modern thinker.
In fact, I would go as far to say that the people on this blog offend me in not rising up and shaming you for making these arguments. I’d say that Dennis offends me for not being a man of science and rising up and shaming you for making these ridiculous arguments.
That is the problem with the world now. No one stands for reason. Everyone stands for themselves and their own selfish needs.
You are offensive Ned. You are offensive. Deeply offensive. You offend science. You offend reason. You offend fair play.
You make these ridiculous arguments over and over again. You should be shamed.
I remember when a physicist who shall remain nameless pulled this stuff at my graduate school. He did it in front of a Nobel Prize winner. The Nobel prize winner let him know what he thought of him and we never heard from his mouth again this kind of stuff.
The problem is there is no one to shame you into stop making these arguments that are scientifically ridiculous.
But then Lemley tells us that software has no structure and no one stands up to him.
Shameful group of people. No honor. No adherence to fair play. Just dixt bags lying and thieving to get whatever they can.
The line is crossed when people believe that the ends justify the means.
A lesson lost by those that ignore history.
Actually, look at Milly’s post where he says he wants to see the claim before deciding whether due process was afforded.
You know Milly isn’t a lawyer by that. That –not equal under the law–is the mechanism used by almost all evi1–racists, naz1’s, KKK, etc. Milly you have sunk to new lows.
“The problem is there is no one to shame you into stop making these arguments that are scientifically ridiculous.”
Sorry, NWPA, that is not correct.
Ned is repeatedly shamed on these boards.
Being shamed – or more correctly, not having someone to shame him, simply is not the problem.
The problem is that there are no consequences to overt and shameful posting here.
Material mischaracterizations of law,
material mischaracterizations of fact, and
material mischaracterizations of what others post are routine.
Violations (if you are an attorney) of the ethical rules are routine (for certain small circle regulars). For those not attorneys, and not bound by those ethical rules, lack of conscience simply prevents the ability to be shamed from having its typical reasonable norming effect.
The merry-go-round continues.
Yes anon, you point out his faults, but he is not shamed by them because there are no consequences. He doesn’t lose status with Dennis for example.
NWPA,
You ask a question that has a ready answer. Look into Ned’s real life connections. He represents third party interests here. He is not posting as an individual. So while he may also believe in the end goals of what he wants the law to be, he is not fully engaging in an intellectually honest discussion because he simply does not want to go where that discussion leads.
Why do you think that he refuses to acknowledge and integrate the valid counterpoints raised against his dogmatic crusade?
Night, whether software is a component or not is irrelevant.
If the mere recital of a programmed computer in a claim were decisive, Alice would have come out differently, ditto Benson. The nominalist position you advocate has been decisively rejected time and again by the courts other than the Federal Circuit. That is why, Night, that court has such a bad reputation.
One must look to what’s new and what’s old. If the new is non statutory then it must be integrated with the old otherwise the claim as a whole is not patentable.
Ned you are wrong in so many ways.
“You are wrong in so many ways.”
Anon breaks the deal.
Go F yourself you piece of S.
Wrong Ned – you broke the deal.
The rest of your post says far more about you than about anyone else.
I’m sorry, anon, but I am now resolved never to again even read one of your posts. I wish we had a filter.
Your resolution – much like the rest of your agenda is misguided.
Further Night, consider a claim to a novel and nonobvious poem.
1. Claim to the poem.
2. Claim to the poem recited by a particular actress.
3. Claim to the poem written on a piece of paper using a particular kind of pen.
5. Claim to the poem recited by a talking computer robot.
6. Claim to the poem displayed on a computer screen by software.
Assume that all statutory subject matter is old and old in combination.
Assume for this discussion that a poem is nonstatutory.
Discuss which, if any, of the 6 examples is patentable and why.
Try to use examples that do not wander into the canards of non-useful arts Ned.
Because, as you should know, when you base your hypothetical outside the very bounds of the Useful Arts, you can have NO logical discussion – in the words of Wolfgang Pauli, you are not even wrong.
(phrase used previously on these boards by a guest author – see link to patentlyo.com
Ned, the court with the bad reputation is the SCOTUS. They have to the detriment of all mucked up patent law and refused to admit that the 1952 Patent Act did not codify their case law.
And, you have things backwards. Just because you can still be proclaimed abstract if you are machine (how bizarre is that) doesn’t mean there isn’t a functional relationship.
Night, it people like you who want to remove 101 from the law that gives the whole patent system a bad reputation. You cannot be serious that all you have to do with a claim is to recite an old machine and, insto-presto, like magic, your claim is patentable with the ONLY concern that the novel subject matter, that can be nonstatutory, be non obvious. The Supreme Court has been telling the CCPA, Federal Circuit and the Patent Bar that this approach to 101 is pure sophistry — and yet, you and others, like the AIPLA, CONTINUE, like spoiled bratlike infants, to insist to the contrary that you are right and that everyone else that has a half a brain is wrong. You call us names, when it is that you who are laughtstocks. It cannot be that you cannot grasp very simple and straightforward concepts. But it seems that this must be the case.
IF simply reciting a programmed computer in a claim were enough, Benson and Flook would have been decided differently — and you know this. So, please stop it with your pathetic nonsense NOW. You simple cannot be that …..
Night, I have a couple of posts locked up in the censor. Perhaps you will see them. Perhaps not.
The list of Ned’s “discussion points”:
“I have no idea” [Ned’s lack of understanding]
“What are you talking about? ” [Ned’s lack of understanding]
“What issue? ” [Ned’s lack of understanding]
“There were no ‘policy concerns’” [Ned’s abject denial of which entity inserted the doctrine]
“you are assuming facts not in evidence” [Ned’s outright 1ie or lack of understanding – take your pick]
“you are erecting strawmen” [Ned’s non sequitur (and false) ad hominem]
Ned ends with a conclusory statement and STILL has not integrated the FACT that there is more than one set of printed matter as recognized under patent law. He continued to choose to be purposefully ignorant of this basic fact and how that fact affects a material point of law. Pure chicanery.
Ned – you have failed to live up to your end of the bargain, and then have the audacity to claim that it was I that broke the deal. Sorry pal, you are just wrong in that claim.
Malcolm employs the “look at me look at me” repost at the top of the thread with ZERO added, well, anything, and then vap1dly throws in a gratuitous and meaningless insult….
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It seems to me at least some of the claims being challenged here could be deemed obvious without relying on the Supreme Court’s decision in Myriad.
Remember that Myriad (plainly one of the worst companies ever to have incorporated) has method claims that purport to protect the sequencing of the BRCA1 ge ne. These claims recite nothing more than old, conventional sequencing methods directed towards obtaining information about the sequence of a particular ge ne. There is nothing new in the claim other than ineligible subject matter (i.e., the information obtained by the method and mental steps of thinking about how that information relates to other sequences). Here’s an example (claim 1 of 5,654,155):
2. A method of identifying individuals having a BRCA1 ge ne with a BRCA1 coding sequence not associated with breast or ovarian cancer comprising:
a) amplifying a DNA fragment of an individual’s BRCA1 coding sequence using an oligonucleotide primer which specifically hybridizes to sequences within the ge ne;
b) sequencing said amplified fragment by dideoxy sequencing;
c) repeating steps (a) and (b) until said individual’s BRCA1 coding sequence is completely sequenced;
d) [ineligible subsequent mental steps deleted as they should be given no weight for 103 purposes].
What Myriad is attempting to do with claims like this (and this has been noted by numerous commenters over the years) is to prevent people from using conventional methods (in the public domain) to obtain information about their own ge nomes.
It’s no different than if Myriad had described the structure of a potentially cancer-causing mole for the first time and then filed a patent on a method of using a magnifying class to look at one’s moles to determine whether they belong to the “newly identified” class of moles. No third party can own your moles (or ge nes, whether cancerous or not) and no third party can prevent you from using methods of looking at things (like moles or ge nes) with a magnifying class (or conventional sequencing methods) because all those methods are obvious (what the heck are magnifying glasses for, anyway?).
Another way of understanding the problem is to consider a patentee who has invented a new, eligible machine. Even although that new, eligible machine is properly structurally defined, the patentee can’t obtain a patent on “looking at [said machine] with a telescope”. Such patents would protect not only the making and using of the machine but also mere information about the machine! That’s not permitted.
Rather than reward companies like Myriad who sue people who practice the prior art for the purpose of learning about their ge nomes (exactly the purpose of that prior art), the patent system should reward companies and people who innovate eligible, improved devices and methods for acquiring that information. That’s how progress is promoted with patents, not with j nk claims like Myriad’s claims directed to protecting information itself.
We now return you to the Billy show. This week’s episode: “Billy’s Pogrom”. Enjoy!
From where I am sitting it is the Mor0n Milly show.
anon, may I beg you to stop responding to posts by saying that the poster is wrong without much more. Also do not ever say again that you are right and the other poster is wrong simply on your say so.
Argue based on fact and reason. Cite cases, or distinguish cases, but tell us why you think a case is right or a case is wrong.
Also, please be willing to discuss the facts in a case, any case, as only through discussing the facts and the issues can one determine what is holding and what is dicta.
Almost all the posters here do that and seem willing to do that but two: you and NWPA. I am beginning to suspect that you two are the very same poster for this reason.
You may beg, but I will not comply unless you too are willing to change and address my longer posts when I provide counterpoints.
Deal?
Deal.
Let’s start with an easy one then,
Congress acted to add a limited defense to business method patents.
If – according to you – business methods are (and were) already non-statutory – why would Congress so act? Why would Congress simply re-state affirmatively that patents are not allowed for business methods?
Lot’s of dancing around this by the anti-business method crowd, lots of dust kicking, but the bottom line is that there is NO business method exception to patenting per se. None. And as I have so often done, contrast ANY sub-category of the method class (for example, medical methods, or bicycle manufacturing methods, or ANY sub-category within methods), and whatever “argument” offered against business methods can be made, thus fully indicating that any attempt to treat business methods categorically different is an errant philosophically driven pogrom.
There simply is no reasonable explanation that you can possibly give to this point, is there? Your view cannot hold (and this is reflected in the very words of Bilski that we have gone over thousands of times).
Couple this with the anti-method-as-a-full-category bias that you so often display, your obsessive attempts to re-evaluate MoT to a requirement above its station as a clue, and your incessant purposefully chosen lack of understanding of the full import and impact of the 1952 Act. These are starting points for you to change in our deal.
As I posted at link to patentlyo.com , I eagerly await the day that you take a serious and intellectually honest approach to the points that I have put in front of you.
Anon, as I said, no one approach Congress trying to overturn State Street Bank by legislation. The discussion of a limited defense to business methods came up in the discussion of prior user rights where we were trying to get a broad general prior user right. The compromise we agreed to on the limited defense to business methods was for the purpose of getting our foot in the door.
Anon, as I said, no one approached Congress trying to overturn State Street Bank by legislation. The discussion of a limited defense to business methods came up in the discussion of prior user rights where we were trying to get a broad gen eral prior user right. The compromise we agreed to on the limited defense to business methods was for the purpose of getting our foot in the door.
Non sequitur and not on point to what I am asking you Ned.
Again: plain and simple: why would Congress simply “reiterate” that business methods are not statutory to begin with?
Why?
Because…
Because they were only asked to address prior user rights.
Again Ned – you are evading the direct point here.
Please describe for us five examples of ineligible “business methods”, Billy, including one which recites “a computer.”
Go ahead.
They certainly exist.
But please show everybody that you know the difference, Billy.
zzzzzzzzzzzzzzzz
Try to stay on point and not kick up dust Malcolm.
contrast ANY sub-category of the method class (for example, medical methods, or bicycle manufacturing methods, or ANY sub-category within methods), and whatever “argument” offered against business methods can be made
That’s not true, of course. There are issues specific to certain “business methods” that aren’t relevant to bicycle manufacture methods.
For instance, certain “business methods” achieve no physical trnasformations. The only elements being altered by the claimed method are abstractions (i.e., the “ownership” or some contractual arrangement for a service to be performed at a later date). That’s not typical of any method that can reasonably be referred to as a “bike manufacture methods.”
You know all this already, Billy. Put the shovel down and get a life.
“That’s not true, of course.”
Except – of course, it is true. It is beyond banal to attempt to point our individual details at this category level discussion. Such is mere dust-kicking.
link to en.wikipedia.org
Keep digging, Billy.
The rest of the world is moving on.
Yet another vap1d “digging” comment from the man clutching the shovel…..
“achieve no physical trnasformations. ”
Please provide the citation that this is somehow a requirement.
Yeah, thought so.
It’s an important clue, Billy, in any eligibility analysis.
You know this already, Billy.
But please keep digging. Always good for a few laughs.
…and another…
(you really need to expand your short script)
(where’s the citation, Malcolm?)
No surprise that in my first overture to Ned on our new “deal” we have Malcolm attempting to derail the conversation.
History repeats.
LOL. Nobody reads the cr ap between you and Ned, Billy, except to laugh at your expense.
That laughter you hear is not laughter with you, Malcolm.
And you brought my name into your “conversation” with Ned first, Billy, you p a t het ic d o osh.
And Malcolm rarely ever goes into substantive discussions (he has burned his little fee fees too badly by making admissions against interests whenever he ventures there).
Malcolm rarely ever goes into substantive discussions
Keep digging, Billy. Someday everyone will look at you and say “Man, that Billy really was ahead of the curve.”
LOL. Just kidding.
And no, I am not NWPA – I am much more handsome, charming and witty.
And your not a girl.
Nor am I a smelly hound.
Ned, the problem you are having is I have responded to you with case law and facts on almost all your points. You don’t change or respond in a reasonable fashion. You just repeat what you said before. I remember with Haliburton I re-re-read the case. Responded to you with quotes from the case and yet you continued on with your nonsense.
I am beginning to suspect that you are not a real person but a policy sheet.
Or a smelly hound dog.
Night, I half recall you’re referencing Halliburton in one of your posts, but it was the wrong Halliburton case. I think it was the Ninth Circuit case, not the Supreme Court case.
LOL – No Ned – it was you that referenced the wrong Halliburton case.
The reason I remember this is because you errantly tried to jump me for lack of citations, when it was you that was standing in the weeds in our discussion.
No Ned. I had an extensive debate with you regarding the Halliburton case you like to reference. You lost badly and then just re-posted the same nonsense in the next post.
That is your MO. Lose. Re-post. Accuse the other person of not quoting the case. Face it, you don’t like me because you get reamed on here from me whenever I take 5 minutes to burn down your nonsense.
But, as every good troll does, you re-post the same nonsense in the next string of posts and then complain when I don’t spend the time to quote from the case.
One sad loser hound dog is what you are.
Night, May I suggest you get over the notion of winning or losing debates here. One wins a debate here if and only if one convinces the person with whom he is talking that he is right. In court, the judge or the jury decides. But here you win only if the other party agrees with you.
Since you seem to satisfied with our discussion on Halliburton, I am quite willing to discuss the case in detail with you again. What is it that you dislike about the case?